National Association of Government Employees, Local R4-1 (Union) and U.S. Department of Defense, Naval Weapons Station, Yorktown, Virginia (Agency)

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56 FLRA No. 25







March 30, 2000


Before the Authority: Donald S. Wasserman, Chairman; Phyllis N.Segal and Dale Cabaniss, Members.

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. For the reasons that follow, we find that the proposal is within the duty to bargain.

II.     Union's Proposal

      The Union's proposal follows, with underlining to indicate the only part of the proposal to which the Agency objects:

The Employer will offer the following outplacement assistance, as a minimum, to each RIF [reduction in force] affected bargaining unit employee:
  • Interagency Career Transition Assistance Plan
  • DOD Priority Placement Program [PPP, or Program]
  • Defense Outplacement Referral System
  • Activity Prior Consideration List (local placement program:
  • Reemployment Priority List
  • DOD Placement Plan for employees under Grade Retention

    Petition for review at 1 (emphasis added).

    III.     Background

          Due to a reorganization, six unit positions at the Activity were transferred to a newly established Regional Resources Service Office. The Agency characterized this reorganization as a "transfer of work," rather than as a "transfer of function." Statement of Position (SOP) at 2. The six incumbents were offered a position at the same grade and pay level. They were notified that their current positions would be subject to a future RIF. Employees were told that they would remain physically located at their current duty station but that their permanent duty station could change.

          One employee, James Hudson, declined the offer, in April 1998. At the time, he was informed that "Should you decide not to accept this offer you may be identified as a surplus employee and be subject to future reduction-in-force action." Response at 6, quoting Agency's communication to Hudson. On October 8, 1998, the Agency notified the Union that the position occupied by Hudson was determined to be surplus and subject to a one-person RIF.

          The parties executed a memorandum of understanding (MOU) concerning Hudson's RIF, but the Agency identified one of the unresolved issues as Hudson's eligibility for the Department of Defense [DoD] PPP. The Agency declared the Union's outplacement proposal nonnegotiable based upon the reference to the PPP. In this connection, the Agency's cover letter accompanying the revised MOU states that "the HRSC-East is responsible for this determination based on DoD regulations. Therefore, eligibility for PPP is not within the scope of bargaining." Cover letter to MOU dated November 4, 1998, Tab E submitted with SOP and quoted in SOP at 3-4.

    IV.     Positions of the Parties

    A.     Agency

          The Agency asserts that the proposal conflicts with the the DoD Priority Placement Program Operations Manual, Chapter 3, Section B1b(2) and section C10 (regulation), for which there is a compelling need. In support of its argument that there is a compelling need for the regulation, the Agency contends that it implements a mandate to the Agency that is essentially nondiscretionary. It also asserts that the regulation is essential to the execution of functions of the agency in a manner consistent with the requirement of an effective and efficient government, and that the regulation is designed to maintain merit principles. [n1] The Agency states that eligibility for the PPP "is premised on the [ v56 p 215 ] employees' being adversely affected through no fault of their own." SOP at 4.

          The Agency states that "On its face," the proposal does not conflict with the Agency regulation. Id. at 5. However, the Agency claims that Hudson became ineligible by declining the position offered. Therefore, according to the Agency, inclusion in the PPP "would mean that Mr. Hudson would be eligible to register for the program contrary to program requirements." Id. The Agency asserts that it has no Authority to change the eligibility criteria of the PPP.

    B.     Union

    1.     Meaning of the Proposal

          The Union submits the following statement of meaning of the proposal:

         The Union's proposal is intended to ensure that all bargaining unit employees affected by the Reduction in Force (RIF) will be offered outplacement assistance and be allowed to register for placement assistance programs. The Union's proposals [sic] also intend to ensure that placement assistance would begin as soon as the employee is notified of a RIF action.
         The following explanation of uncommon language is provided:
  • RIF stands for Reduction in Force, the Federal procedure used to reduce the number of personnel
  • DOD stands for Department of DefensePetition for Review at 1-2.

    2.     Response to Agency's Statement of Position

          The Union agrees that the DoD Priority Placement Operations Manual, which addresses the Program, is an Agency-wide regulation. However, the Union claims, first, that the PPP is not mandated, or "inflexible," and, second, that the Agency has not shown that there is conflict between the Agency-wide regulation and the proposal. In this regard, the Union asserts that the regulation makes employees ineligible for the PPP if they have declined a transfer of function within