[ v52 p124 ]
52:0124(12)NG
The decision of the Authority follows:
52 FLRA No. 12
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
LOCAL R4-6
(Union)
and
U.S. DEPARTMENT OF THE ARMY
APPLIED AVIATION TECHNOLOGY DIRECTORATE
(Agency)
0-NG-2299
_____
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
September 4, 1996
_____
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(1)
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 one proposal, which provides that no bargaining unit employee in a particular Agency facility will be displaced from his or her position by anyone outside the facility as a result of a reduction in force (RIF). For the reasons that follow, we find that the proposal is outside the duty to bargain under section 7117 of the Statute.
II. Background
The Agency notified the Union that it intended to consolidate the Applied Aviation Technology Directorate (AATD) and two other Agency facilities(2) into one competitive area.(3) In response, the Union submitted the following proposal:
No bargaining unit employee in AATD will be displaced from his/her position by anyone outside AATD as a result of a [RIF].
The Agency asserted that it did not have a duty to bargain over the proposal. There is no contention that the consolidation has not been effected.
III. Positions of the Parties
A. Agency
The Agency contends that the proposal is outside the duty to bargain under section 7117(a)(1) of the Statute because it is inconsistent with 5 C.F.R. §§ 351.402 and 351.701.(4) The Agency also contends that the proposal is outside the duty to bargain under American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491 (1995), petition for review filed, No. 95-1593 (D.C. Cir. Dec. 1, 1995), because it would directly determine the working conditions of AATD supervisors and managers as well as the working conditions of employees, supervisors, and managers at ARDEC and IMMC. Finally, the Agency contends that the proposal cannot be an appropriate arrangement under section 7106(b)(3) of the Statute because it is inconsistent with the above-mentioned Government-wide regulations.
B. Union
The Union asserts that the proposal is intended as an appropriate arrangement for AATD unit employees because it would prevent them from being displaced from their positions by employees outside AATD. The Union also contends that the proposal "is not intended to preclude managers/supervisors within AATD from displacing bargaining unit employees in a [RIF]." Petition for Review at 1 (emphasis in original).
IV. Analysis and Conclusions
The Union's proposal was offered during bargaining over the Agency's decision to consolidate three activities, including AATD, into one competitive area. At the outset, we note that the proposal does not expressly establish or delineate the boundaries of a competitive area.(5) In explaining its intent in submitting this proposal, the Union states that the proposal is "not intended to preclude managers/supervisors within AATD from displacing bargaining unit employees in a reduction in force." Id. (emphasis in original).(6) As this explanation is consistent with the plain wording of the proposal, we adopt it for the purposes of this decision. See National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 737 (1996). Based on this explanation, we construe the proposal to preclude employees (unit members, and others including managers and supervisors, alike) within the competitive area, but outside AATD, to displace bargaining unit employees by exercising their rights to "bump" and "retreat" to AATD positions during a RIF.
Government-wide regulations codified at 5 C.F.R. Part 351 define the rights of employees within an established competitive area, in the circumstances of a RIF. In particular, 5 C.F.R. § 351.402(a) provides that employees affected by a RIF compete for job retention with others in the same competitive area. Consistent with this provision, employees affected by a RIF "must be allowed to 'compete for retention' with other employees in the same 'competitive area.'" U.S. Merit Systems Protection Board v. FLRA, 913 F.2d 976, 977 (D.C. Cir. 1990) (citing 5 C.F.R. § 351.402(a)). One way such competition occurs is through the exercise of "bump" and "retreat" rights. Under 5 C.F.R. § 351.701, employees are entitled to exercise such rights to all positions for which they are qualified within their competitive areas.
The proposal under review in this negotiability appeal would prevent management from assigning employees who are within the same competitive area, but are not in one particular activity -- AATD -- that is part of this area, to a position in AATD if such an action would result in the displacement of an AATD unit employee. This limits the bump and retreat rights of individuals within the same competitive area in a manner inconsistent with the requirements of 5 C.F.R. § 351.402(a) and 5 C.F.R. § 351.701. As these regulations are Government-wide, within the meaning of section 7117(a)(1) of the Statute, the proposal is outside the duty to bargain.
Further, as the proposal is outside the duty to bargain under section 7117(a)(1) of the Statute because it is inconsistent with Government-wide regulations, we find that it is unnecessary to address whether the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Authority does not consider whether a proposal constitutes an appropriate arrangement when the proposal is outside the duty to bargain under section 7117(a)(1) of the Statute. E.g., International Federation of Professional and Technical Engineers and U.S. Department of the Navy, Marine Corps Security Force Battalion, Pacific, 47 FLRA 1086, 1090 (1993). We conclude, therefore, that the Agency is not obligated to bargain over the proposal, and we dismiss the petition for review.
V. Order
The Union's petition for review is dismissed.
APPENDIX
5 C.F.R. § 351.402 provides:
§ 351.402 Competitive area.
(a) Each agency shall establish competitive areas in which employees compete for retention under this part.
(b) A competitive area may consist of all or part of an agency. The minimum competitive area in the departmental service is a bureau, major command, directorate or other equivalent major subdivision of an agency within the local commuting area. In the field, the minimum competitive area is an activity under separate administration within the local commuting area. A competitive area must 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.
5 C.F.R. § 351.701 provides, in part:
§ 351.701 Assignment involving displacement.
(a) General. When a group I or II competitive service employee with a current annual performance rating of record of minimally successful . . . or equivalent, or higher, is released from a competitive level, an agency shall offer assignment, rather than furlough or separate, in accordance with paragraphs (b), (c), and (d) of this section to another competitive position which requires no reduction, or the leas[t] possible reduction, in representative rate. The employee must be qualified for the offered position. The offered position shall be in the same competitive area, last at least 3 months, and have the same type of work schedule . . . as the position from which the employee is released. . . .
[Paragraphs (b) and (c) set forth bumping and retreating procedures, and paragraph (d) sets forth limitations on retreating under paragraph (c).]
Concurring Opinion of Member Armendariz:
I concur in my colleagues' conclusion that the proposal is outside the Agency's duty to bargain. However, I reach this conclusion on a different ground than my colleagues. In my view, based on the wording of the proposal and the Union's explanation, the proposal would allow supervisors and managers from within AATD to displace AATD unit employees in a RIF, but would prohibit employees, supervisors, and managers at ARDEC and IMMC from doing so. In essence, the proposal establishes a competitive area that consists of unit employees, supervisors, and managers at AATD.
In American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491 (1995), petition for review filed, No. 95-1593 (D.C. Cir. Dec. 1, 1995) (OPM), the Authority concluded that a proposal that established competitive areas to be used in conducting RIFs within an agency's central office was outside the agency's duty to bargain under section 7117 of the Statute. Citing United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992), the Authority concluded, among other things, that the proposal was outside the duty to bargain under section 7117 of the Statute because it directly determined the working conditions of supervisory and managerial personnel who were not in the union's bargaining unit. OPM, 51 FLRA at 510-13.
In this case, the proposal would directly determine the working conditions of AATD supervisors and managers who are not in the Union's bargaining unit because it would allow them to displace AATD unit employees in a RIF. It would also directly determine the working conditions of, among others, supervisors and managers at ARDEC and IMMC who are not in the Union's bargaining unit by preventing them from displacing AATD unit employees in a RIF. Therefore, for reasons fully stated in OPM, the Agency is not obligated to bargain over the proposal under section 7117(a)(1) of the Statute.
Further, as the proposal is outside the duty to bargain under section 7117(a)(1) of the Statute because it is inconsistent with OPM, I would find that it is unnecessary to address whether the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. E.g., International Federation of Professional and Technical Engineers and U.S. Department of the Navy, Marine Corps Security Force Battalion, Pacific, 47 FLRA 1086, 1090 (1993).
I would conclude, therefore, that the Agency is not obligated to bargain over the proposal, and I would dismiss the petition for review.(*)
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
Authority's Footnotes Follow:
1. The separate concurring opinion of Member Armendariz is set forth at the end of this decision.
2. The two other Agency facilities are the Aviation Research, Development & Engineering Center at Langley, Virginia (ARDEC) and the Eastern Inspection Region Section, Watercraft/Raft Branch, Maintenance Operations Division, Maintenance Directorate, Integrated Material Management Center at Fort Eustis, Virginia (IMMC).
3. Competitive areas are the organizational and geographic boundaries within which employees compete for job retention in a RIF. 5 C.F.R. § 351.402(a). A competitive area may be defined only in terms of "an agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so defined." 5 C.F.R. § 351.402(b). The pertinent text of 5 C.F.R. § 351.402 is set forth in the Appendix to this decision.
4. The pertinent text of 5 C.F.R. § 351.701 is set forth in the Appendix to this decision.
5. According to the Union, it initially proposed that AATD remain a separate competitive area. Enclosure 2 to Petition for Review. Following correspondence from the Agency, asserting that proposals defining competitive areas are outside the duty to bargain, the Union offered the proposal now before us. In view of our determination, we do not address the separate ground on which our concurring colleague finds the proposal outside the duty to bargain.
6. As relevant here, "bumping" and "retreating" are rights of employees to displace others who occupy positions with lower retention standing. These rights are set forth in 5 C.F.R. § 351.701(a), which provides, in pertinent part:
When a . . . competitive service employee . . . is released from a competitive level, an agency shall offer assignment . . . in accordance with paragraphs (b), (c), and (d) of this section to another competitive position which requires no reduction, or the leas[t] possible reduction, in representative rate. . . . The offered position shall be in the same competitive area . . . .
Concurring Opinion Footnote Follows:
*/ In view of this determination, I find it unnecessary to address the Agency's contentions that the proposal is inconsistent with 5 C.F.R. §§ 351.402 and 351.701.