[ v16 p288 ]
16:0288(44)CA
The decision of the Authority follows:
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.