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49:1575(142)NG - - AFGE, Local 3673 and Navy, Naval Air Warfare Center, Trenton, NJ - - 1994 FLRAdec NG - - v49 p1575

[ v49 p1575 ]
The decision of the Authority follows:

49 FLRA No. 142





LOCAL 3673










July 14, 1994


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of four proposals relating to the Agency's decision to delay the relocation of certain positions.

For the following reasons, we find that the proposals are negotiable.

II. Background

The Agency states that the 1991 Base Closure and Realignment Commission authorized the creation of the Naval Air Warfare Center, Trenton, New Jersey, and ordered the relocation of 157 engineers and support personnel from the Trenton facility to the Naval Air Warfare Center, Aircraft Division, Patuxent River, Maryland. Initially, all engineers assigned to the Propulsion Engineering Directorate (PE) were scheduled for relocation sometime in 1994. In October 1993, all the employees in the PE were given transfer of function letters.(1) Subsequently, there was a delay in the relocation of 32 engineering positions because the work of those positions was "tied to" Trenton. Statement of Position at 1. The Agency decided that the functions of those positions would "be performed at Trenton until the facilities can be replicated at Patuxent River, or until the testing being done is assigned to the Air Force at Arnold Engineering Development Center (AEDC) in Tullahoma, Tennessee." Id. According to the Agency, "[t]he plan was to complete bargaining, rescind the 32 original Transfer of Function letters and inform the employees that their transfer of function would be delayed until the labs/cells were rebuilt (approximately 2 years), or the work transferred to AEDC." Id. The parties thereupon entered into negotiations over the Agency's proposed "Process for Identifying the 32 Propulsion Engineering Positions to Delay Their Transfer of Function Beyond 30 October 1994[,]" which set forth a variety of procedures designed to identify the 32 engineering positions that would remain at Trenton.(2) Petition for Review, Attachment 7 at 1. The Union's proposals seek to alter those procedures.

III. Proposals

Proposal 1

Change "based on permanent job function (current) and PD's" to "based on permanent job functions and PD's."

Proposal 2

Add to "generally recognized as the people currently performing the function," the following: "previously having performed the function, or capable of being trained and/or certified to perform the function."

Proposal 3

Change "no down grades" to "down grades permitted."

Proposal 4

Change "pool of currently qualified people" to "pool of eligible people."

IV. Positions of the Parties

A. Agency

As an initial matter, the Agency requests the Authority to dismiss the petition for review as to Proposals 1, 3, and 4 because the record is insufficient for negotiability rulings on those proposals. The Agency argues, in this regard, that the intent of those proposals is not clear and that the Union has failed to submit a statement explaining their intent, as required under section 2424.4(a)(2) of the Authority's Rules and Regulations.

In the alternative, the Agency contends that all of the proposals are contrary to the transfer of function regulations contained in 5 C.F.R. Part 351, subpart C, and Federal Personnel Manual (FPM) Supplement 351-1, subchapter S10.(3) The Agency notes that 5 C.F.R. § 351.303 and FPM Supplement 351-1, S10-4 provide two methods of identifying employees who transfer with their functions and that the proposals conflict with both methods. Specifically, the Agency argues that the proposals would impermissibly expand the pool of employees who are entitled to transfer. The Agency notes that, under the regulations, it is the employees who perform the functions who are entitled to transfer with those functions. According to the Agency, the effect of Proposal 1, which deletes the word "current," is to allow employees who are not presently performing the duties of functions to transfer with those functions. Similarly, under Proposal 2, which would require the Agency to identify employees who had previously performed the functions or who are capable of being trained or certified to perform the functions, the Agency asserts that employees would not have to currently perform the functions in order to transfer. Also with respect to Proposal 4, the Agency explains that deletion of the words "currently" and "qualified" would impermissibly expand the pool of employees to include those who are not currently performing the functions that are scheduled for transfer. As to Proposal 3, the Agency maintains that it would impermissibly allow "employees not identified with the transfer of function to volunteer for a downgrade to a position identified with the transferring function." Statement of Position at 4. The Agency argues that this proposal also is inconsistent with the requirements of 5 C.F.R. § 351.302, which, according to the Agency, holds that employees will be transferred at their grade levels.

B. Union

The Union did not file a response to the Agency's statement of position. In its petition for review, the Union identified and submitted various documents detailing the parties' negotiating positions with respect to the proposals. Attached to the petition for review is a memorandum dated 13 December 1993, entitled "Clarification of the Union's Negotiating Position[,]" which states as the Union's position that the delay in the relocation of the 32 engineering positions "is not part of the transfer of function and is the only subject currently being negotiated." Petition for Review, Attachment at 11.

V. Analysis and Conclusions

As a preliminary matter, we find, contrary to the Agency's contention, that the record presents a sufficient basis on which to assess the negotiability of the proposals. We also find, for the following reasons, that the proposals are negotiable.

A transfer of function is defined as the movement of the work of one or more employees from one competitive area to another. 5 C.F.R. § 351.301; FPM Supplement 351-1, subchapter S10-2a(1). Additionally, "[i]n a transfer of function, the operation of the function must cease in one competitive area and must be carried on in an identifiable form in another competitive area where it was not being performed at the time of transfer." FPM Supplement 351-1, subchapter S10-3a(2).

In this case, we find that the retention of the 32 engineering positions in Trenton does not constitute a transfer of function. Accordingly, the regulations on which the Agency relies to support its allegation of nonnegotiability do not apply. In this regard, we note that the functions of the 32 positions did not cease to exist in Trenton and reappear in identifiable form in Patuxent River, Maryland, or any other competitive area. Rather, the functions continue to be performed in Trenton. While a transfer of those functions may occur at some future date, thereby necessitating application of the transfer of function regulations, their use to bar negotiations over the proposals is unwarranted. Our finding that retention of the engineering positions in Trenton is not a transfer of function is buttressed by the Agency's acknowledged intent to rescind the transfer of function letters provided to 32 employees, after bargaining with the Union with respect to the process for identifying the 32 positions that will remain in Trenton at this time.

The Union's proposals would effectively require that the Agency expand the pool of employees who will be considered for one of the 32 engineering positions remaining in Trenton to include employees who do not currently perform the duties of those positions. We find nothing inconsistent with law, rule, or regulation, so as to render the proposals nonnegotiable. First, we note that the Agency's sole argument of nonnegotiability is that the proposals are inconsistent with the transfer of function regulations, which as discussed above, do not apply in these circumstances. Second, we find no other impediment to bargaining. For example, while the proposals would identify employees who have previously performed the functions of the engineering positions or who are capable of being trained to perform those functions, nothing in the proposals would preclude the Agency from determining either the particular qualifications and skills needed to perform the work of the positions or whether the employees who are selected to fill the 32 engineering positions possess those qualifications.

In sum, we find that the proposals are negotiable.

VI. Order

The Agency must bargain on request, or as otherwise agreed to by the parties, concerning the proposals.(4)





30 OCTOBER 1994

1. DIVISION SUPERVISORS IDENTIFY FUNCTIONAL AREAS AND NUMBER OF PEOPLE, BY DIVISION, NEEDED TO REMAIN AT TRENTON. The people selected will provide on-site project engineering support to projects conducted in the test facilities still active at Trenton. The people will remain in these functions until the facilities are transferred, workload reduces to the extent people are not needed, or more pressing need at Pax dictated their transfer to Pax. Official notice will be given for the subsequent transfer of the function to Pax.

2. CDR (Sel) Williamson will review process with the AFGE union.
-Process description forwarded to HRO for official submittal to the union.
-HRO officially inform the union of this process.

3. Division supervisors identify pool of people within each area
-Based on FPM Supplement 351[-]1 Subchapter S10, Transfer of Function
-Based on permanent job function (current) and PD's
-Generally recognized as the people currently performing the function
-No down grades

4. Division supervisors brief division on functional areas and pools.

5. Division supervisors interview each person for interest in being considered for one of the 32 billets to have a delayed transfer of function:
-Each person to indicate YES or NO, initial, and date

6. PE2 supervisors provide the list(s) to PE2. PE3 supervisors provide the list(s) to PE2 via PE3.

7. PE2 provides a memo to HRO including:
-Functional areas and pool (will include description of function, applicable PD(s), pool of currently qualified people to perform the function, and each persons [sic] PD)
-Indication of Interest (list of YES/NO's with initials)
-statement of requirement for selecting 32 people to delay their transfer of function to PAX

8. HRO calculates appropriate retention register by functional area pool.

9. HRO selects 32 people to fill the 32 billets for delayed transfer using the following criteria:
1) By retention register order 2) By preference based on the YES/NO list

(i.e. if first person on the list has indicated interest in delaying the transfer (YES), he/she will be assigned one of the 32 billets. If the first person on the list has indicated no interest in delaying their transfer (NO), that person will be skipped and the next person on the list will be considered for selection).

10. HRO rescinds Transfer of Function letters to 32 people selected.

(If blank, the decision does not have footnotes.)

1. A transfer of function is the movement of work from one competitive area to another. Competitive areas are those areas in which employees compete for retention and are defined in terms of an agency's organizational units and geographical location. See 5 C.F.R. § 351.402.

2. The full text of the document is set forth in an Appendix to this decision.

3. We note that effective December 31, 1993, various provisions of the FPM were abolished and others were provisionally retained through December 31, 1994. See FPM Sunset Document at 1. FPM Supplement 351-1 has been provisionally retained. See id., Chapter Summary Sheet at 54.

4. In finding the proposals negotiable, we make no judgment as to their merits.