16:0288(44)CA - HHS Washington, DC and HHS Region 7, Kansas City, MO and NTEU -- 1984 FLRAdec CA

 16 FLRA No. 44
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES
 WASHINGTON, D.C. AND DEPARTMENT OF HEALTH
 AND HUMAN SERVICES, REGION 7, KANSAS CITY,
 MISSOURI
 Respondents
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case Nos. 7-CA-20075
                                                      7-CA-20152
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Acting Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record in these cases, including the
 stipulation of facts, accompanying exhibits, and the contentions of the
 parties, the Authority finds:
 
    On June 15, 1979, the National Treasury Employees Union (NTEU or
 Union) was certified as the exclusive representative of a unit of all
 professional and nonprofessional employees employed by the Department of
 Health, Education and Welfare /1/ in the greater Kansas City
 metropolitan area, including inter alia employees of both the Public
 Health Service (PHS) and the Office of Human Development Services (OHD),
 and excluding certain other employees not relevant herein.  At all times
 relevant to the facts of the instant cases, no collective bargaining
 agreement was in effect between the parties.
 
    Regarding Case No. 7-CA-20075, during the later summer of 1981,
 Respondent Region 7 in Kansas City provided the Union with timely notice
 of its intention to conduct a reduction-in-force (RIF) within its PHS
 component.  The Union requested bargaining concerning the impact and
 implementation thereof, and, among its bargaining proposals, submitted
 the following:
 
          The "Competitive Area" will be established by the Agency as all
       of those positions under the personnel administration and
       authority of the Principal Regional Director of DHHS-Kansas City,
       Mo. within the commuting area of Kansas City, Missouri.
 
    After several bargaining sessions, the parties reached agreement
 concerning certain procedures management would utilize in conducting the
 RIF as well as appropriate arrangements for adversely affected
 employees, but they were unable to reach agreement upon the definition
 of the proper competitive area.
 
    Management's chief negotiator at the Regional level took the position
 that the Union's proposal concerning competitive areas was not
 negotiable, asserting essentially that competitive areas were already
 defined in pre-existing regulations promulgated at the Agency
 Headquarters level and that he was without authority to negotiate
 concerning such regulations at the Regional level, the level of
 exclusive recognition.  /2/ Respondent HHS in Washington further took
 the position that because competitive areas had been established on an
 Agency-wide basis, any divergence therefrom would cause an "intolerable
 disruption" in the Agency'c operations.  On September 28, 1981 NTEU
 filed with the Authority a negotiability appeal (Case No. O-NG-571) as
 to Respondent's declaration of non-negotiability concerning competitive
 areas.  On November 24, 1981 Respondent Region 7, at the direction of
 Respondent HHS Headquarters, conducted a RIF within its PHS component
 adversely affecting some 20 members of the bargaining unit.
 
    Essentially the same fact pattern obtains with respect to Case No.
 7-CA-20152.  Pursuant to notice to the Union in November 1981 of
 Respondent's intention to conduct a RIF within its OHD component, NTEU
 once again advanced a bargaining proposal to the effect that the
 competitive area to be utilized in conducting the RIF should include all
 of Respondent's components within the Kansas City, Missouri commuting
 area.  Respondents took the position, as they had previously, that the
 Union's proposal was non-negotiable based upon the same rationale relied
 upon earlier in the course of bargaining over the RIF within PHS.  A
 negotiability appeal was filed with the Authority by NTEU (Case No.
 O-NG-610) and Respondents proceeded to implement the RIF in OHD which
 adversely impacted some 20 unit employees, on January 23, 1982.  As a
 result of the RIF actions undertaken in PHS and OHD, NTEU filed the
 instant charges and subsequently elected to proceed first under the
 unfair labor practice procedures of the Statute rather than under the
 negotiability procedures.  /3/
 
    The complaint alleges in substance that Respondents violated section
 7116(a)(1) and (5) of the Statute by refusing to negotiate concerning
 the appropriate competitive areas to be utilized in conducting two
 separate RIF actions and by unilaterally implementing RIF actions within
 Respondent Region 7's PHS and OHD components, prior to fulfilling their
 bargaining obligations concerning the impact and implementation thereof.
 
    As noted above, Respondents take the position that the competitive
 areas to be utilized in the event of a RIF are embodied in regulations
 promulgated at the Departmental level, are uniformly applicable
 throughout the Agency, and are not negotiable at the level of exclusive
 recognition (in these circumstances, the Regional level).  The
 Respondents further argue that there existed a compelling need for such
 regulations, citing the "intolerable disruption" which would ensue
 should a departure from the Departmental regulations be permitted.
 Finally, Respondents contend that the compelling need issue is not
 litigable in the context of an unfair labor practice proceeding, but
 rather that such determination may only be made in the course of a
 negotiability appeal.
 
    The Authority has previously determined that where an Agency has
 raised the issue of compelling need as an affirmative defense to an
 allegation that it has refused to bargain in good faith, the Authority
 may, in the context of an unfair labor practice proceeding, decide such
 issue pursuant to section 7117 of the Statute.  /4/ Moreover, in
 National Treasury Employees Union and Department of Health and Human
 Services, Food and Drug Administration, Region VII, 11 FLRA No. 55
 (1983), the Authority was confronted with a bargaining proposal
 identical in all respects to the proposal at issue herein, as well as
 with an assertion on the part of the Department of Health and Human
 Services, Washington, D.C., and its Kansas City, Missouri Regional
 Office, that the proposal was not negotiable based upon a compelling
 need for uniformly applied regulations governing RIF competitive areas
 promulgated at the Departmental level.  The record in the instant case
 provides no basis upon which to distinguish our previous holding that
 there existed no compelling need for the Departmental Regulation at
 issue here and that the Union's proposal was negotiable at the level of
 exclusive recognition.  /5/ Thus, for the reasons more fully set forth
 in that case, the Authority concludes that the Respondents have failed
 to establish that there existed a compelling need for the regulation in
 dispute.
 
    The record further discloses that while exclusive recognition, and
 therefore the bargaining obligation herein, exists at the Respondent's
 Kansas City Regional Office level rather than at the Agency Headquarters
 level, both the initial determination to declare the Charging Party's
 proposals to be non-negotiable, as well as the ultimate decision to
 carry out the RIFs were based upon HHS directives to that effect.  Thus,
 the actions of Respondent HHS effectively precluded the Respondent
 Regional Office from fulfilling its bargaining obligation to the Union
 and, in the circumstances of these cases, it is concluded that the
 conduct of Respondent HHS was violative of section 7116(a)(1) and (5) of
 the Statute.  Department of Health and Human Services, Social Security
 Administration, Region VI, and Department of Health and Human Services,
 Social Security Administration, Galveston, Texas District, 10 FLRA 26
 (1982);  Department of the Interior, Water and Power Resources Service,
 Grand Coulee Project, Grand Coulee, Washington, 9 FLRA 385 (1982).
 
    The Authority further finds that, in contrast to Respondent HHS,
 agents and representatives of Respondent Region 7 acted only as conduits
 in carrying out decisions made at the Agency Headquarters level and
 specifically that they exercised no discretion with respect to the
 decision to actually implement the RIFs.  In these circumstances, it
 would not effectuate the purposes and policies of the Statute to find a
 separate violation based upon the actions of officials of Respondent
 Region 7 who did not themselves initiate any change in conditions of
 employment but merely acted ministerially in implementing the directives
 of higher level Agency management.  See, e.g., Department of the
 Interior, Water and Power Resources Service, Grand Coulee Project, Grand
 Coulee, Washington, supra.  Accordingly, the complaint against
 Respondent Region 7 must be dismissed.
 
    While neither NTEU nor the General Counsel has requested a status quo
 ante remedy in this case, NTEU seeks an Authority other which would
 require that any agreement reached between the parties as a result of
 further bargaining over RIF procedures be applied on a retroactive
 basis.  The Authority concludes that, in the circumstances of this case,
 an order requiring retroactive application of any such agreement is not
 warranted, but rather that an order requiring the Respondent to bargain
 concerning negotiable RIF procedures will best effectuate the purposes
 and policies of the Statute.  See, e.g., The Adjutant General's Office,
 Puerto Rico Air National Guard, 3 FLRA 342 (1980).
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Authority and section 7118 of the Statute, the Authority hereby orders
 that the Department of Health and Human Services, Washington, D.C.,
 shall:
 
    1.  Cease and desist from:
 
    (a) Directing Department of Health and Human Services, Region 7,
 Kansas City, Missouri not to bargain regarding proposals made in the
 course of negotiations by National Treasury Employees Union, concerning
 the appropriate competitive areas to be utilized in the conduct of
 reduction-in-force actions.
 
    (b) Directing Department of Health and Human Services, Region 7,
 Kansas City, Missouri to unilaterally implement a reduction-in-force
 within its Kansas City, Missouri Public Health Service and Office of
 Human Development Services components without first bargaining over a
 proposal by National Treasury Employees Union concerning appropriate
 competitive areas.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to carry out the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Upon request of the National Treasury Employees Union, permit
 Department of Health and Human Services, Region 7, Kansas City, Missouri
 to negotiate concerning the Union's proposals relating to the
 appropriate competitive areas to be utilized in conducting RIFs.
 
    (b) Post at the facilities of the Department of Health and Human
 Services, Region 7, Kansas City, Missouri, copies of the attached Notice
 on forms to be furnished by the Federal Labor Relations Authority.  Upon
 receipt of such forms they shall be signed by the Secretary of the
 Department of Health and Human Services, or her designee, and shall be
 posted and maintained for 60 consecutive days thereafter, in conspicuous
 places, including bulletin boards and all other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 insure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (c) Pursuant to section 2423.30 of the Federal Labor Relations
 Authority's Rules and Regulations, notify the Regional Director of
 Region VII, Federal Labor Relations Authority, in writing, within 30
 days from the date of this Order, as to what steps have been taken to
 comply herewith.  
 
 Issued, Washington, D.C., October 29, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail to permit Department of Health and Human Services,
 Region 7 to bargain regarding a proposal made in the course of
 negotiations by National Treasury Employees Union concerning the
 appropriate competitive areas to be utilized in the conduct of
 reduction-in-force actions.
 
    WE WILL NOT direct Department of Health and Human Services, Region 7
 to unilaterally implement a reduction-in-force action without first
 bargaining over a proposal by National Treasury Employees Union
 concerning appropriate competitive areas.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request of the National Treasury Employees Union,
 permit Department of Health and Human Services, Region 7 to negotiate
 concerning the Union's proposals relating to the competitive areas to be
 utilized in conducting reductions-in-force.
                                       (Agency)
 
    Dated:  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region VII, Federal Labor Relations Authority whose address
 is:  1531 Stout Street, Suite 301, Denver, CO 800202 and whose telephone
 number is (303) 837-5224.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ As a consequence of the establishment of the Department of
 Education, the remaining portion of the Department of Health, Education
 and Welfare was designated as the Department of Health and Human
 Services (HHS), and the matters at issue herein relate solely to a
 bargaining unit at the Department of Health and Human Services.
 
 
    /2/ HHS Personnel Manual Instruction 351-1-40 established the
 Agency's competitive areas and provides in pertinent part:
 
    351-1-40 COMPETITIVE AREAS
 
          A. The normal subdivisions of the Department for reduction in
       force are outlined below:
 
                                  * * * *
 
          5.  Positions under a regional office's appointing authority
       form competitive areas as follows:
 
          a.  Each PHS Hospital, SSA Program Service Center, and SSA Date
       Operations Center is a separate competitive area.
 
          b.  Positions within the Indian Health Service within each
       commuting area form a competitive area.
 
          c.  All other clerical, secretarial, and wage rate positions in
       a commuting area constitute a competitive area.
 
          d.  For positions other than those covered by 5.a., b., or c.
       above, separate competitive areas are established region-wide
       within each of the following components:  Office of the Secretary,
       Public Health Service, Health Care Financing Administration,
       Office of Child Support Enforcement, Office of Human Development
       Services, and Social Security Administration.
 
 
    /3/ Section 2423.5 of the Authority's Rules and Regulations provides
 in pertinent part:
 
    Sec. 2423.5 Selection of the unfair labor practice procedure or the
 negotiability procedure.
 
          Where a labor organization files an unfair labor practice
       charge pursuant to this part which involves a negotiability issue,
       and the labor organization also files pursuant to Part 2424 of
       this subchapter a petition for review of the same negotiability
       issue, the Authority and the General Counsel ordinarily will not
       process the unfair labor practice charge and the petition for
       review simultaneously.  Under such circumstances, the labor
       organization must select under which procedure to proceed.  Upon
       selection of one procedure, further action under the other
       procedure will ordinarily be suspended . . . (.)
 
 
    /4/ Defense Logistics Agency (Cameron Station, Virginia) et al., 12
 FLRA No. 86 (1983).
 
 
    /5/ Moreover, it is neither asserted by the Respondent nor otherwise
 apparent from the record that the instant proposal would conflict with
 any government-wide rule or regulation.  The applicability of the
 proposal to non-bargaining unit employees was not asserted by the
 Respondents as a ground for precluding negotiation of the proposal, and
 hence, was not considered by the Authority.  See American Federation of
 Government Employees, Local 32, AFL-CIO and Office of Personnel
 Management, 14 FLRA No. 98 (1984), wherein the Authority, citing
 National Federation of Federal Employees, Local 1167 v. Federal Labor
 Relations Authority, 681 F.2d 886 (D.C. Cir. 1982), further noted that
 it is now well established that the parties bear the burden of creating
 the record upon which the Authority will resolve negotiability disputes
 placed before it.