[ v09 p1039 ]
09:1039(147)NG
The decision of the Authority follows:
9 FLRA No. 147 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1603 Union and NAVY EXCHANGE, NAVAL AIR STATION, PATUXENT RIVER, MARYLAND Agency Case No. O-NG-435 DECISION AND ORDER ON NEGOTIABILITY ISSUE THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND PRESENTS ISSUES RELATING TO THE NEGOTIABILITY OF THE FOLLOWING UNION PROPOSAL. ARTICLE II, SECTION I RIF ACTIONS WILL BE MADE IN ACCORDANCE WITH SECNA(V)I(N)ST 5300.22, EXCEPT AS FOLLOWS: AN EMPLOYEE IN GROUP I WILL, WHEN REACHED IN A REDUCTION-IN-FORCE ACTION, HAVE REVERSION RIGHTS TO ALL PREVIOUSLY HELD POSITIONS IN THE UNIT, AND ALL INTERVENING POSITIONS FOR WHICH QUALIFIED IN DESCENDING ORDER ACCORDING TO GRADE. UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS. THE BARGAINING UNIT HEREIN IS COMPRISED OF NONAPPROPRIATE FUND EMPLOYEES WHO ARE NOT COVERED BY REDUCTION-IN-FORCE (RIF) PROCEDURES PRESCRIBED IN THE FEDERAL PERSONNEL MANUAL. INSTEAD, THE AGENCY REGULATION REFERENCED IN THE PROPOSAL GOVERNS THE RIF REVERSION OR RETREAT RIGHTS OF SUCH EMPLOYEES. THIS REGULATION PROVIDES FOR EMPLOYEE RETREAT RIGHTS IN A RIF ONLY TO THE LAST POSITION PREVIOUSLY HELD IN THE ORGANIZATION BY THE EMPLOYEE, PROVIDED THAT THE POSITION IS ENCUMBERED, THAT SUCH REVERSION WILL NOT RESULT IN A HIGHER GRADE OR RATE OF PAY, THAT SUCH REVERSION WILL NOT RESULT IN A HIGHER GRADE OR RATE OF PAY, THAT THE EMPLOYEE EXERCISING THE RETREAT RIGHTS HAS AN EARLIER SERVICE DATE THAN THE EMPLOYEE TO BE DISPLACED AND THAT THE EMPLOYEE REMAINS QUALIFIED TO PERFORM THE DUTIES OF THE PREVIOUS POSITION. CONTRARY TO THE UNION'S ASSERTION, BASED ON ITS EXPRESS LANGUAGE, THE PROPOSAL, WHEN COMBINED WITH THE AGENCY REGULATION, WOULD, INSOFAR AS IS HERE PERTINENT, OBLIGATE THE AGENCY TO PROVIDE AN EMPLOYEE, AFFECTED BY A RIF, REVERSION RIGHTS TO ALL POSITIONS PREVIOUSLY HELD BY SUCH EMPLOYEE AND ALL INTERVENING POSITIONS IN THE UNIT ON THE BASIS OF SENIORITY. IN THIS RESPECT, THE INSTANT PROPOSAL IS NOT MATERIALLY DIFFERENT FROM THE ONE THE AUTHORITY HELD TO BE IN VIOLATION OF MANAGEMENT'S RIGHT TO "ASSIGN" EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE IN NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23 AND DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS, 3 FLRA 185(1980). IN THAT CASE THE PROPOSAL FOUND TO BE NONNEGOTIABLE CONCERNED SENIORITY-BASED PLACEMENT RIGHTS FOR EMPLOYEES DOWNGRADED PURSUANT TO POSITION CLASSIFICATION ACTIONS. SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA 604, 613 AND 627(1980), ENFORCED AS TO OTHER MATTERS SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981) CERT. DENIED SUB NOM. AFGE V. FLRA, U.S. , 102 S. CT. 1443(1982). FINALLY, THE UNION'S CLAIM THAT THE AGENCY'S REGULATION CANNOT BAR NEGOTIATIONS ON ITS PROPOSAL BECAUSE THE AGENCY HAS NOT SHOWN THAT A COMPELLING NEED EXISTS FOR THE REGULATION IS MISPLACED. THAT IS, BARGAINING ON THE UNION'S PROPOSAL IN THIS CASE IS BARRED BECAUSE THE PROPOSAL IS INCONSISTENT WITH THE AGENCY'S STATUTORY RIGHT TO "ASSIGN" EMPLOYEES; THE FACT THAT THE AGENCY HAS CHOSEN TO SET OUT IN A REGULATION THE SUBSTANTIVE CRITERIA IT WILL APPLY IN EXERCISING THAT RIGHT TO ASSIGN EMPLOYEES DOES NOT THEREBY SUBJECT THOSE CRITERIA TO A COMPELLING NEED CHALLENGE UNDER SECTION 7117(A)(2) OF THE STATUTE. ACCORDINGLY, FOR THE REASONS FULLY DETAILED IN THE SCOTT AIR FORCE BASE DECISION, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE UNION'S PETITION FOR REVIEW BE, AND IT HEREBY IS, DISMISSED. ISSUED, WASHINGTON, D.C., AUGUST 20, 1982 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY