19:0224(24)NG - NTEU and DOE -- 1985 FLRAdec NG
[ v19 p224 ]
19:0224(24)NG
The decision of the Authority follows:
19 FLRA No. 24
NATIONAL TREASURY EMPLOYEES
UNION
Union
and
DEPARTMENT OF ENERGY
Agency
Case No. O-NG-983
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and presents issues
concerning the negotiability of the following three Union proposals.
Upon careful consideration of the entire record, including the parties'
contentions, the Authority makes the following determinations.
Union Proposal 1
Bargaining unit employees distributing union insurance
brochures as described in Article 8 will do so on official time.
Union Proposal 1 would require the Agency to grant official time to
bargaining unit employees distributing brochures for a Union-sponsored
health insurance plan. The Agency contends that a bargaining unit
employee must be, or must become, a Union member to enroll in that
health insurance plan. As such, the Agency argues that the distribution
of this material, in effect, violates section 7131(b) of the Statute.
The Authority agrees with this Agency argument.
Section 7131(b) of the Statute /1/ requires that activities relating
to the internal business of a labor organization be performed by an
employee while that employee is in a non-duty status, i.e., not on duty
time. Solicitation of membership is an activity which is related to the
internal business of a labor organization. /2/ In this regard, the
Union contends that the primary purpose of distributing the brochure is
"an attempt by the Union to make all bargaining unit employees aware of
the benefits available under the Union-sponsored health plan . . .. Any
'solicitation' of membership which occurs is secondary to the offer of
federal health insurance coverage." (Union Reply Brief at 2). However,
the Authority concludes that, whether incidental or otherwise,
solicitation of union membership is clearly in violation of section
7131(b). Cf. American Federation of Government Employees, Local 1778,
AFL-CIO and Department of the Air Force Headquarters, 438th Air Base
Group (MAC), McGuire Air Force Base, 10 FLRA 346 (1982) (wherein the
Authority determined that although the solicitation of membership was
only incidental to the performance of activities for which official time
had properly been granted, such solicitation was nevertheless in
violation of section 7131(b)).
As to the facts herein, the record indicates that neither bargaining
unit employees nor other Federal employees are eligible to participate
in the Union-sponsored health plan unless the employee is or becomes a
member of the Union. Therefore, contrary to the Union's assertion, the
proposal is inapposite to Union Proposal 6 in National Treasury
Employees Union and Department of the Treasury, Internal Revenue
Service, 6 FLRA 508 (1981). The Authority determined, in that case,
that the distributing of union announcement cards aided in implementing
the labor-management relationship and was not solely related to the
institutional structure of the union. The distribution of the
announcement cards was found to serve the function of advising or
reminding members of the bargaining unit that the union was their
exclusive representative. Therefore, the distribution of such cards did
not constitute internal business of the union within the meaning of
section 7131(b) and, therefore, the proposal was within the duty to
bargain. Instead, in the present case, the material to be distributed
concerns a benefit available only to members of the Union rather than
all employees in the bargaining unit. Hence, in the circumstances of
this case, since Union membership is necessary to participate in the
Union-sponsored health plan described in the brochure, it is
solicitation of membership. Therefore, Union Proposal 1 violates
section 7131(b) and, thus, is outside the duty to bargain.
Union Proposal 2
Article 22, Reduction in Force, Part II, Section 5
The filling of any bargaining unit vacancy within the
competitive area for which bargaining unit employees in that area
who will be affected by RIF are eligible will be suspended from
the date of the initial RIF notice to affected employees until the
effective date of the RIF.
Union Proposal 2 would require that the filling of certain vacant
bargaining unit positions be suspended from the date a
reduction-in-force (RIF) notice is received by affected employees until
the effective date of the RIF action. In this respect, Union Proposal 2
is to the same effect as Union Proposal 1 in Association of Civilian
Technicians, Montana Air Chapter and Department of the Air Force,
Montana Air National Guard, Headquarters 120th Fighter Interceptor Group
(ADTAC), 11 FLRA 505 (1983), petition for review filed sub nom.
Association of Civilian Technicians, Montana Air Chapter v. FLRA, No.
83-1489 (D.C. Cir. May 5, 1983), which required a temporary hiring
freeze until all RIF actions were completed, except for internal
placement. That decision relied upon the Authority's determination in
National Federation of Federal Employees (NFFE) Local 1332 and
Headquarters, U.S. Army Materiel Development and Readiness Command,
Alexandria, Virginia, 3 FLRA 611 (1981), that a proposed freeze on
hiring from outside sources until personnel actions under the RIF were
completed concerned a matter negotiable only at the election of the
agency since it was directly and integrally related to the statutory
right of management to determine numbers and types of employees under
section 7106(b)(1) of the Statute. /3/ Therefore, for the reasons filly
set forth in U.S. Army Materiel Development and Readiness Command, the
proposal herein is negotiable only at the election of the Agency. See
also American Federation of Government Employees, AFL-CIO, Local 2612
and Department of the Air Force, Griffiss Air Force Base, New York, 8
FLRA 429 (1982). Since the Agency has elected not to negotiate on this
matter, Union Proposal 2 is not within the duty to bargain.
As to the Union's argument, that, based on the reasoning in American
Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air
Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2
FLRA 152, 155 (1979), enforced 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, 455 U.S. 945, 102 S.Ct. 1443 (1982), the proposal
would only delay management's exercise of its rights under section 7106
and would not prevent the Agency from acting at all, the Authority finds
that the Union's contention cannot be sustained. Union Proposal 2 would
improperly establish a condition (the effective date of a RIF personnel
action) upon the Agency's ability to determine the numbers and types of
employees assigned to an organizational subdivision under section
7106(b)(1). Furthermore, the condition described in the proposal would
itself involve the exercise of management's right under section
7106(a)(2)(A) to "layoff" employees. Cf. American Federation of
Government Employees, Local 1760 and Department of Health and Human
Services, Social Security Administration, Northeast Program Service
Center, 9 FLRA 1025 (1982) (proposal 1 would improperly establish a
condition upon the agency's ability to terminate or demote under section
7106(a)(2)(A) of the Statute). Therefore, Union Proposal 2 would
directly interfere with these management rights, not only individually,
but also by conditioning the exercise of one right upon the prior
exercise of the other. American Federation of Government Employees,
AFL-CIO, Local 3004 and Department of the Air Force, Otis Air Force
Base, Massachusetts, 9 FLRA 723 (1982). Hence, for all the reasons
stated above, the proposal here in dispute is not within the duty to
bargain. /4/
Union Proposal 3
Article 22, Reduction in Force, Part II
Section 1
A reduction in force (RIF) is the release of an employee from
his competitive level by separation, demotion, furlough for more
than thirty (30) days, or reassignment requiring displacement
because of a lack of work or funds, reorganization,
reclassification due to change in duties, or the need to make a
place for an employee exercising reemployment or restoration
rights.
Section 6
A. The Employer will establish competitive levels in accordance
with applicable laws and regulations. Competitive levels will
consist of all positions in a competitive area in the same grade
or occupational level which are sufficiently alike in
qualification requirements, duties, responsibilities, pay
schedules, and working conditions, so that the incumbent of any
one position can be moved interchangeably to any other position
without changing the terms of his appointment or unduly
interrupting the work program.
B. Undue interruption is defined as a degree of interruption
that would prevent the completion of required work within the
allowable limits of time and quality. Depending upon the
pressures of priorities, deadlines, and other demands, the
ordinary work program probably would not be unduly interrupted if
the optimum quality and quantity of work were not regained within
90 days after a reduction in force. Lower priority programs might
tolerate even longer interruption.
Section 9
A. Within each competitive level, employees in the competitive
service shall be divided into tenure groups as follows:
1. Group I includes employees under career appointments who
are not serving probation.
2. Group II includes employees serving probation,
career-conditional employees, and career employees in obligated
positions.
3. Group III includes indefinite employees, employees under
temporary appointments pending establishment of registers,
employees under term appointment, employees in status quo, and
employees under any other nonstatus nontemporary appointments.
B. Within each tenure group, employees shall be divided into
three subgroups as follows:
1. Subgroup AD includes veterans preference eligibles with
compensable service connected disabilities of 30 percent or more.
2. Subgroup A includes veterans preference, eligibles.
3. Subgroup B includes nonpreference eligibles.
Section 10
A. When it appears that a reduction in force action may be
necessary, the Employer shall prepare a retention register for
each affected competitive level within the appropriate competitive
area(s). The register shall contain the names of employees within
the competitive level first by tenure group and then by subgroup.
B. Within a subgroup, employees are listed in the order of
their retention standing in relation to each other as reflected by
their service computation date.
C. The official performance appraisals of record will be
reviewed to determine additional years of service for RIF
purposes. The following scale will be used to determine
additional years of creditable service:
Outstanding 4 years
. . . .
D. The Employer will not release a competing employee from a
competitive level while retaining in the level an employee who
has:
1. A specifically limited temporary appointment or promotion;
2. A specifically limited term appointment or promotion;
3. Received a written decision of removal or reduction in
grade based on unacceptable performance as defined at 5 U.S.C.
4302;
4. Lower retention standing, except in those exception
situations where management actions are mandated or authorized
under 5 CFR 351.601.
G. The retention standing for all employees on detail will be
based on the employees' permanent positions.
Section 11
A. When it becomes necessary to release employees from a
competitive level, non-competing employees as defined by OPM
regulations shall be released first. After all employees who are
not competing are eliminated, the employee shall select competing
employees for release in the inverse order of their retention
standing beginning with the lowest; i.e., all employees in Group
III are selected for release before any in Group II, and all
employees in Group II are release before any in Group I. Within
each Group, all employees in subgroup B are released before any in
subgroup A, and all employees in subgroup A are released before
any in subgroup AD.
B. Exceptions to the foregoing shall be made in the cases of
employees restored to duty after military duty as follows:
1. veterans preference eligibles in Group I or II who are
entitled to be retained in one year after restoration shall be
retained over other employees in their subgroups until the end of
the one year period.
2. nonpreference eligibles who are entitled to be retained for
either six months or one year after restoration to duty shall be
retained over other employees in their subgroups until expiration
of the retention period.
3. when the deviations from the regular order of selection
provided for in 1 or 2 above are made, the reasons for the
deviations shall be recorded on the retention register for
inspection by the Union and employees.
D. Competing employees may be permitted to displace employees
with lower standing in the same subgroup when equally reasonable
assignments cannot be made by displacing employees in lower
subgroups and the assignment will result in a higher
representative rate than otherwise possible.
Section 12
A. When the Employer selects an employee for release from his
competitive level it shall:
1. assign him with his consent to a position for which he is
qualified which will last at least three (3) months; or
2. furlough him; or
3. separate him.
B. When a Group I or II employee has been selected for release
from his competitive level, the Employer shall offer to assign him
to a position for which he is qualified in another competitive
level in his competitive area which requires no reduction, or the
least possible reduction, in representative pay rate when a
position in the other competitive level is held by an employee:
1. in a lower subgroup;
2. with lower retention standing in the same subgroup in a
position from which or through which the Group I or II employee
was promoted, or an essentially identical position.
C. An employee is entitled to only one offer of assignment and
the Employer shall select which of the two or more positions with
the same representative rate it wishes to offer. An employee is
entitled to no further offers when:
1. he accepts an offer; or
2. he rejects an offer; or
3. he fails to reply to an offer within a reasonable time.
Section 13
B. The specific notice must contain the following information:
1. the action to be taken and the effective date;
2. salary retention information;
3. competitive area;
4. competitive level;
5. group subgroup;
6. service computation date;
7. location of retention registers and other records pertinent
to the RIF;
8. reason for any permanent or temporary exception for more
than 30 days in the release of any individual lower on the
retention register than the addressee;
9. appeal rights;
10. reemployment rights; and
11. any other information required by law and regulations.
As explained by the Union, Union Proposal 3 would require the Agency
to incorporate government-wide regulations concerning reduction-in-force
procedures into the collective bargaining agreement so that the
regulations would be enforced as a matter of contract. The Agency
contends that this proposal is outside the duty to bargain based on the
reasoning in National Federation of Federal Employees, Local 1167 and
Department of the Air Force, Headquarters, 31st Combat Support Group
(TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981) (Union
Proposal 1), affirmed sub nom. NFFE, Local 1167 v. FLRA, 681 F.2d 886
(D.C. Cir. 1982). The Authority agrees with the Agency's contention.
In this regard, the Authority determined in Homestead Air Force Base
that a proposal involving the exercise of management's right to contract
out under section 7106(a)(2)(B) was outside the duty to bargain. In
response to the argument of the union therein that the proposal merely
reiterated restrictions contained in OMB Circular A-76, the Authority
stated that the incorporation of specific contractual terms concerning
contracting out arguably paralleling provisions of an OMB Circular would
require management to comply with those terms, regardless of whether OMB
subsequently revised or eliminated the directives/circulars from which
they were taken. Thus, the proposal there would have imposed an
independent contractual requirement upon management's discretion with
respect to contracting out and hence interfered with management's rights
under the Statute in that regard.
The Union argues that 5 U.S.C. 7116(a)(7), which makes it an unfair
labor practice for an agency "to enforce any rule or regulation . . .
which is in conflict with any applicable collective bargaining agreement
if the agreement was in effect before the date the rule or regulation
was prescribed", acknowledges that the "parties could negotiate based on
existing regulations and thereby estop an agency from acting in variance
from the regulations even after differing regulations had been
promulgated." (Union Reply Brief at 7). However, the Union's argument
does not alter the fact that negotiation over subjects which concern the
exercise of management's rights is precluded under the Statute
regardless of whether such subjects are addressed in regulation. Hence,
for the reasons stated in Homestead Air Force Base, Union Proposal 3 is
outside the duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review as to Union
Proposals 1, 2, and 3 be, and it hereby is, dismissed. Issued,
Washington, D.C., July 22, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 19 FLRA No. 24 (O-NG-983)
SUPPLEMENTAL DECISION AND ORDER
On July 22, 1985, the Authority issued its decision in the
above-entitled case finding, among other things, that Union Proposal 2
was not within the duty to bargain based on the Authority's
determination as to Proposal 1 in Association of Civilian Technicians,
Montana Air Chapter and Department of the Air Force, Montana Air
National Guard, Headquarters 120th Fighter Interceptor Group (ADTAC), 11
FLRA 505 (1983).
During the pendency of the Authority's consideration of this case,
the U.S. Court of Appeals for the District of Columbia Circuit reversed
and remanded Proposal 1 in Montana Air National Guard to the Authority.
Association of Civilian Technicians, Montana Air Chapter v. FLRA, 756
F.2d 172 (D.C. Cir. 1985). Hence, the Authority is reopening this case,
19 FLRA No. 24, to reconsider its decision as to Proposal 2.
Accordingly, IT IS ORDERED that the Authority's decision as to
Proposal 2 be, and it hereby is, vacated. For the Authority. Issued,
Washington, D.C., August 6, 1985
Harold D. Kessler
Managing Director for Case
Processing
--------------- FOOTNOTES$ ---------------
/1/ Section 7131(b) provides as follows:
Sec. 7131. Official time
. . . .
(b) Any activities performed by any employee relating to the
internal business of a labor organization (including the
solicitation of membership, elections of labor organization
officials, and collection of dues) shall be performed during the
time the employee is in a non-duty status.
/2/ See American Federation of Government Employees, AFL-CIO, Local
2823 and Veterans Administration Regional Office, Cleveland, Ohio, 2
FLRA 4 (1979).
/3/ Section 7106(b) provides, in relevant part, as follows:
Sec. 7106. Management rights
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organizational
subdivision, work project, or tour of duty(.)
/4/ In view of the decision herein, the Authority finds it
unnecessary to consider the Agency's additional contentions as to the
nonnegotiability of the proposal.