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The decision of the Authority follows:
45 FLRA No. 21
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal relating to "surplus" employees. The proposal provides that employees designated as surplus will have the opportunity to remain on the Employee Information Sharing System (EISS) list, a Forest Service-wide surplus employee list, for a period of not less than 120 days before being directly reassigned and that the employees will receive at least 60 days' notice before the effective date of a directed reassignment.1/
For the following reasons, we find that the proposal is negotiable.
Surplus employees will have the opportunity to remain on the EISS list for a period of not less than 120 days before being directly reassigned and will be given notification of their directed reassignment no less than 60 days before the effective date.
III. Positions of the Parties
The Agency contends that the proposal is inconsistent with Article 32 of the parties' Master Agreement.2/ The Agency argues that nothing in Article 32 establishes either a minimum or maximum time period during which an employee must remain on the EISS list, or contains any restriction on management's right to reassign an employee. The Agency asserts that because the proposal conflicts with a higher-level controlling agreement--Article 32 of the Master Agreement--it is outside the duty to bargain and the Union's petition should be dismissed. Statement at 10. The Agency also contends that the proposal "flies in the face of Section 11 of the MOU which permit[s] a surplus employee to 'request' a directed reassignment to protect the employee's retreat rights to his/her current position."3/ Id.
The Agency also argues that the proposal conflicts with management's rights, under section 7106(a)(2)(A), (B), and (C) of the Statute, to assign employees, to assign work, and to make selections for positions. According to the Agency, the effect of the proposal is that a surplus employee cannot report to duty at a new work location until at least 180 days after the employee's name first appears on the EISS list. The Agency contends that, under the proposal, the employee will be given a minimum of 120 days to locate another job and an additional 60 days' notice if the employee is subject to a directed reassignment. Id. at 11. The Agency asserts that if an employee on the EISS list is in a position which must be abolished due to lack of funds and/or lack of work, "the 180 day 'stay' would excessively interfere with management's right to determine when the surplus employee can be assigned work in the new position." Id. at 13.
The Agency contends that management retains the right to determine when work will be performed and by whom. The Agency also contends that an agency cannot be prevented from determining the duration of an assignment of work. The Agency claims that, under this proposal, it would be precluded from reassigning a surplus employee to a vacant position that it needed to fill quickly and would be unable to assign an employee on the EISS list until "the 180 day 'stay' had expired." Id. According to the Agency, such a "180 day 'stay' would substantially interfere with management's right to decide when the employee could begin performing the work." Id. (emphasis deleted).
The Agency maintains that even if the proposal were consistent with the Master Agreement, it is not an appropriate arrangement under section 7106(b)(3) of the Statute because it excessively interferes with management's rights.
The Union notes that although the first sentence of Article 32.5 of the Master Agreement addresses the placement of mobile surplus employees on the EISS list, the entire Article is silent as to non-mobile surplus employees. Mobile surplus employees are those employees who are willing to relocate to a different duty station, either in the state or in a different state. The Union contends that non-mobile surplus employees should also be placed on the EISS list and given first consideration for job vacancies within their duty station. The Union explains that all surplus employees, whether mobile or non-mobile, would go on the EISS list and it is within this context that the proposal should be understood. Under this construction, the Union states that a surplus employee would go on the EISS list only once, when the employee is identified as surplus, and the employee "does not get multiple extensions of 120 days in order to 'stave off' any management action." Response at 2.
The Union states that the 120-day and 60-day time periods are not intended to run consecutively, but could run concurrently. The Union explains that under the proposal it would be possible for management to notify an employee that he or she was a surplus employee and immediately give the employee a 60-day notification of a directed reassignment. The Union states that, in those circumstances, "the employee would remain on the EISS [list] and receive first consideration for vacancies for the remainder of the 120 days and this could result in the employee accepting a different job offer from a different manager shortly after his [or her] directed reassignment." Id. at 3.
The Union contends that the proposal does not conflict with either the Master Agreement or "management's right to determine when work will be accomplished." Id. at 4. The Union claims that the Master Agreement does not prohibit the establishment of time limits governing an employee's placement on the EISS list. The Union asserts that the two time limits prescribed by the proposal would not interfere with the accomplishment of the Agency's work. The Union states that under the proposal, a manager is free to give a surplus employee 60 days' notice of a directed assignment at any time prior to the termination of the employee's 120-day enrollment in the EISS. According to the Union, "[t]he 60[-]day timelimit [sic] merely gives the surplus employee adequate notification of where he will be assigned; if management has a need to have the work completed immediately and by that employee, they have alternative means at their disposal." Id. The Union asserts that the employee could perform the work at the employee's present duty location, or the employee could be detailed to the new duty station.
The Union further argues that the proposal is an appropriate arrangement which does not "extensively" interfere with management's rights. Id. at 5. The Union asserts that "[f]or the majority of the employees occupying a surplus position, management's decision means that they will have to move themselves and their families to a new location." Id. The Union also asserts that the surplus employees have no control over management's decision to designate their positions as surplus.
The Union contends that the effect of the two time limits on management's rights is "greatly overstated" by management. Id. at 7. The Union notes that while the proposal's 120-day time limit places a "technical burden" on a management right, it would allow employees to begin making the necessary preparations to move themselves and their families to the new locale. Id. According to the Union, by allowing a certain amount of time for the employee to seek a job in an area in which the employee would prefer to live, "the proposal would allow the employee some measure of control over a bad situation that was not of his making." Id.
IV. Analysis and Conclusions
For the following reasons, we find that the proposal is negotiable.
A. Master Agreement and the MOU
The Agency claims that the proposal is inconsistent with the Statute. The Agency also argues that the proposal is inconsistent with the Master Agreement and the MOU. The Agency's argument that the proposal is inconsistent with the Master Agreement and the MOU is not a claim that the proposal is inconsistent with law, rule or regulation. However, where the conditions for review of a negotiability appeal have been met, a union is entitled to a decision from the Authority on whether a disputed proposal is negotiable under the Statute. See American Federation of Government Employees, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983); National Federation of Federal Employees, Local 1900 and Department of Housing and Urban Development, 33 FLRA 192, 194-95 (1988) (Housing and Urban Development). To the extent that there are issues in a case concerning whether a proposal conflicts with a higher-level agreement, in addition to issues concerning whether a proposal is negotiable under the Statute, the contractual issues should be resolved in other appropriate proceedings. See American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 29 FLRA 990, 993 (1987), reversed as to other matters sub nom. U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut v. FLRA, No. 87-1762 (D.C. Cir. 1990); American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984).
The claim that a proposal conflicts with a higher-level agreement does not prevent our determining the negotiability of a proposal when the proposal's negotiability under the Statute is also at issue. Housing and Urban Development, 33 FLRA at 195. Accordingly, the Agency's claim that the proposal is inconsistent with the Master Agreement and the MOU provides no basis for dismissing the petition.
B. Meaning of the Proposal
The proposal provides that employees will have the opportunity to remain on the EISS list for a period of not less than 120 days before being directly reassigned and that the employees will receive at least 60 days' notice before the effective date of a directed reassignment. The EISS is a computerized, Forest Service-wide surplus employee list. Employees in surplus positions who are willing to accept positions outside of their local commuting area are placed on the EISS list. The surplus employees designate their occupational and geographical preferences as to positions for which they wish to be considered at their current grade level or at a lower grade level. The surplus employees remain on the EISS list until they have been placed in a funded position or other action, such as an employee finding a preferable position and removing his or her name from the list, has been taken. Statement at 6; Exhibit 7.
Article 32 of the parties' Master Agreement contains procedures for the placement of surplus employees. The Agency maintains that placement on the EISS list is a voluntary action by the employee, and not an action taken by management. Statement at 7. Under the proposal, however, once an employee's position is identified as surplus, the employee's name is entered on the EISS list, without the employee's specific request. Under the proposal and current practice, employees receiving job offers based on their position on the EISS list are free to refuse the offer. Moreover, under the proposal, employees may remain on the EISS list after refusing such a job offer. Previously, employees remained on the EISS list until some other action was taken. Under the proposal, employees would remain on the EISS list for a period of up to 120 days, unless they removed their names from the list or took a position elsewhere.
The first portion of the proposal, therefore, provides that an employee may remain on the EISS list for up to 120 days, even after receiving a directed reassignment, so as to allow the employee to continue to be considered for positions which may be more to the employee's liking or at a location of the employee's preference. Previously, once an employee was reassigned to a different position, the employee's name would be removed from the EISS list.
As noted above, the proposal also provides for 60 days' notice of a directed reassignment; that is, a permanent reassignment to another area. The Union states that it does not intend the time periods set forth in the proposal to be consecutive. Rather, according to the Union, the 60-day notice period could run concurrently with the 120-day period that employees remain on the EISS list. We find that the Union's explanation of the proposal is consistent with the plain wording of the proposal. Accordingly, we will adopt the Union's interpretation of the proposal for purposes of our decision.
Consequently, under the proposal, at the time employees are declared surplus, they are placed on the EISS list for a period of 120 days. At any time during that 120-day period, employees could be given 60 days' notice of a directed reassignment. Employees who had received the 60 days' notice "would remain on the EISS [list] and receive first consideration for vacancies for the remainder of the 120 days and this could result in the employee accepting a different job offer from a different manager shortly after his [or her] directed reassignment." Response at 3.
Finally, as explained by the Union, even though an employee may not be permanently reassigned until the expiration of the 120-day listing period, any work that the Agency needs performed can still be accomplished by that employee because the Agency is free to detail or temporarily reassign that employee. Because this explanation of the proposal is consistent with the wording of the proposal, we will adopt the explanation for purposes of our decision.
In sum, as interpreted above, the proposal merely allows an employee whose position has been declared surplus to be placed on the EISS list for a period of 120 days so as to enable the employee to attempt to locate a preferable new position. The effect of the proposal is that an employee who is given a directed reassignment that would otherwise take effect after expiration of the 60-day notice period, but which takes effect only after expiration of the 120-day listing period, may accept a preferable job offer during the remainder of that employee's listing period on the EISS list. Under the proposal, therefore, the effect on management is no different than if an employee accepted a directed reassignment and subsequently left the position to which he or she was reassigned because he or she accepted a position with another agency or accepted a job in the private sector. Moreover, neither the 60-day notice period nor the 120-day listing period would affect management's ability to accomplish the work of the Agency because the proposal would not preclude management from temporarily reassigning employees during those periods.
C. Management Rights
We find that the proposal is negotiable. Even assuming that the proposal directly interferes with management's right to assign employees, under section 7106 of the Statute, because, as the Agency claims, the proposal could postpone the effective date of the Agency's permanent reassignment of a surplus employee, we find that the proposal constitutes a negotiable appropriate arrangement.
In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 29-33 (1986) (Kansas Army National Guard), the Authority developed a framework to determine whether a proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Under that framework, we determine whether the proposal is intended as an arrangement for employees who may be adversely affected by the exercise of management's rights. If we find that the proposal is intended as an arrangement, we determine whether that arrangement is appropriate or whether it excessively interferes with the exercise of management's rights.
Applying the Kansas Army National Guard framework, we find that the proposal is intended as an arrangement for employees adversely affected by the exercise of management's right to lay off under section 7106(a)(2)(A) of the Statute by conducting a reduction-in-force because of a lack of funding for the employees' positions. Specifically, we find that the proposal is intended to mitigate the adverse effects on employees of being declared "surplus." The proposal benefits those employees by providing a 120-day period to locate a preferable new duty station before having to move as the result of a directed reassignment.
As to the effect of the proposal on management, we note that the proposal could postpone any directed reassignment that an employee may receive until the 120-day period has been completed. However, we note that during that 120-day period, the Agency retains the right to detail or temporarily assign the employee to whatever work needs to be performed. The burden imposed on the Agency by the proposal, therefore, is that management would be precluded from permanently reassigning the employee before the completion of the 120-day listing period, rather than immediately upon the expiration of the 60-day notice period for directed reassignment.
We find that the benefit to employees of being able to search for a preferable position and duty station during the 120-day period, before having to move permanently to a less preferable duty station as the result of a directed reassignment, outweighs the burden on management that results from the postponement of a directed reassignment, particularly in light of the fact that the Agency is not precluded from temporarily assigning the employees during that period. Accordingly, we find that the proposal does not excessively interfere with management's rights under section 7106(a)(2) of the Statute to assign employees, assign work, or make selections for positions and conclude, therefore, that the proposal is an appropriate arrangement.
Accordingly, we find that the proposal is negotiable.
The Agency must, upon request or as otherwise agreed to by the parties, bargain on the proposal.4/
1. The identification of positions surplus to the needs of the Forest Service is a Management responsibility. This Article provides the procedures to be used in the placement of surplus employees. Management will provide the Union an opportunity to negotiate on the adverse impacts and implementation and will inform the Union of any changes. Negotiations will be in accordance with Article 11, Section 3.
2. Definition: A surplus employee is a permanent employee in an unfunded position, or an employee in a position scheduled to be abolished.
3. Identification of Surplus Employees: When one or more unfunded positions have been identified among a group of positions within a competitive area and competitive level (Article 33, Section 10) being involved, Management will identify surplus employees in the following order:
a. employees wishing to retire;
b. employees wishing to volunteer for outplacement;
c. employees according to service computation date starting at the bottom.
(This ranking has no relationship to the Retention Register Ranking in Reduction-in-Force procedures.)
4. Notification: When Management identifies surplus positions, the affected employees will be notified by letter, including a statement of the reasons the position is surplus. Included in the notification will be a request to complete an Employee Data Sheet and an Employee Skill Sheet; i.e., an SF-171. A copy of this notice will be given to the Local Union.
5. Surplus Employee List: All employees in surplus positions who are willing to accept positions outside of their local commuting area will be placed on a Service-wide Surplus Employee List (also known as the Employee Information Sharing System or EISS). Within 10 days of receipt of the employee data sheet by the servicing personnel office, this list shall be updated and shall be accessible through the servicing personnel office. A copy of this list, including updates, will be given to the Union upon request. They may designate occupational and geographical preferences. Management will furnish each surplus employee with (a) an employee data sheet describing the information needed from the employee, instructions on filling out the form, how the list works, and any condition under which their name may be removed from the system; and (b) an employee skill sheet describing their qualifications.
After the responses to the Employee Data Sheet and Skill Sheet are received, Management will discuss and modify the questionnaire with each employee to ensure clear understanding of the geographical preferences shown.
Surplus employees will remain on the Surplus Employee List until they have been placed in a funded position or other action has been taken.
6. Filling Vacant Positions: When Management decides to fill vacancies, qualified employees on the Surplus Employee List shall receive first consideration. Nonselection of employees from the Surplus Employees List shall be based on legitimate job-related reasons. Management shall endeavor to meet employees; geographical preferences in the order shown on the Employee Data Sheet and occupational qualifications as reflected on the Skills Sheet.
7. Offers of Placement: Management will endeavor to offer each surplus employee a funded position at the employee's current grade, tour of duty, and in a location acceptable to the employee.
8. Voluntary Downgrade: When a surplus employee initiates or voluntarily accepts a move to a lower graded position, grade and pay retention will be granted if the move has a positive effect on another employee and/or such action will assist Management in advancing its objectives and reduce or avoid adverse impacts on employees and the agency's functions.
9. Management will offer surplus employees enrollment in placement assistance programs operated by other agencies for which they are qualified. These are described in FPM/DPM 330.
a. the Interagency Placement Assistance Program (IPAP) for permanent employees in surplus positions administered by OPM;
b. the USDA Reemployment Priority List;
c. the Displaced Employee Program administered by OPM.
10. Nothing in this Article affects Management's rights to reassign employees in accordance with 5 CFR-335.102.
(If blank, the decision does not have footnotes.)
1/ Surplus employees are permanent employees in an unfunded position or employees in a position scheduled to be abolished. A directed reassignment is a permanent reassignment to another duty station.
2/ The text of Article 32 is set forth as an Appendix to this decision.
3/ After negotiations over the impact and implementation of management's decision to reduce the workforce, the parties signed a memorandum of understanding (MOU) that constituted a supplement to the Master Agreement. In the MOU, the parties specifically stated that they were unable to reach agreement on the disputed proposal in this case. See Statement at 3, Exhibit 5.
4/ In finding the proposal negotiable, we make no judgment as to its merits.