[ v21 p354 ]
21:0354(46)NG
The decision of the Authority follows:
21 FLRA No. 46
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Union
and
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
Agency
Case Nos. 0-NG-930
0-NG-931
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
These cases are before the Authority because of two separate
negotiability appeals filed under section 7105(a)(2)(E) of the Federal
Service Labor-Management Relations Statute (the Statute), and concern
the negotiability of two proposals submitted in response to a proposed
reduction-in-force (RIF) in the Agency.
II. Procedural Issues
The Agency moved that the Authority consolidate the two separate
appeals filed by the Union for purposes of Authority review. These two
appeals arose out of the same set of collective bargaining negotiations
between the same parties and concern two portions of a larger article
declared nonnegotiable by the Agency. Thus, in the interest of
expeditious processing of these two appeals which concern a common
subject, the Authority grants the Agency's motion to consolidate.
The Agency contends that each Union petition should be dismissed as
untimely filed because the Agency had orally stated earlier in the
negotiations that an entire article, which included the two disputed
portions appealed to the Authority, was nonnegotiable. This contention
cannot be sustained. It is well established that the time limit for
filing a negotiability appeal pursuant to section 2424.3 of the
Authority's Rules and Regulations runs from the date an agency's
allegation is served in writing upon a union. See American Federation
of Government Employees, AFL-CIO, Local 3385 and Federal Home Loan Bank
Board, District 7, Chicago, Illinois, 7 FLRA 398 (1981).
The Agency also contends that the Union's appeal as to Proposal II
should be dismissed under section 2424.4(a)(2) of the Authority's Rules
and Regulations because the proposal is vague, ambiguous and unsupported
by sufficient explanation as to its meaning. Contrary to the position
of the Agency the Authority finds that the Union did sufficiently
explain the meaning of Proposal II in the context of the negotiations in
which it was offered. Thus, the Agency's contention cannot be
sustained.
III. Union Proposal I
Prior to conducting any reduction-in-force in any competitive
area in Headquarters, management shall conduct a cost-benefit
analysis to consider if a furlough and/or a retraining program for
affected unit employees would be less costly than conducting a
reduction-in-force.
Management shall consider the following in conducting its
analysis:
(The cost savings of) All bargaining unit employees in
Headquarters shall be furloughed according to the following
schedule:
(1) GS-5 and below for 5 days on Mondays or Fridays which are
not holidays starting the fifth pay period of the fiscal year and
continuing every fourth pay period until the 5 days of furlough
are completed.
(2) GS-10 to GS-6, inclusive, for 10 days of furlough on
Mondays or Fridays which are not holidays starting the fifth pay
period of the fiscal year and continuing every fourth pay period
until the 10 days of furlough are completed.
(3) GS-15 to GS-11, inclusive, 15 days of furlough beginning as
soon as practicable after the beginning of the fiscal year but in
no event later than the fifth pay period of the fiscal year and
continuing every pay period until the fifteen days of furlough are
completed.
A. Positions of the Parties
The Agency contends that Proposal I is inconsistent with section
7106(a) and (b) of the Statute because it interferes with the internal
deliberation process in which management engages before management
implements decisions concerning rights reserved to it under section
7106(a) and (b) of the Statute.
The Union contends, in essence, that Proposal I constitutes an
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute. In support of its position, the Union cites the decision of
the U.S. Court of Appeals for the District of Columbia Circuit in
American Federation of Government Employees, AFL-CIO, Local 2782 v.
Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983),
reversing and remanding American Federation of Government Employees,
AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census,
Washington, D.C., 7 FLRA 91 (1981).
B. Analysis
According to its language and the Union's interpretation, which
interpretation the Authority adopts, Proposal I would require the Agency
to conduct a cost study to determine whether instituting a furlough or
retraining program for affected employees would be less costly than
conducting a RIF. In addition, Proposal I provides a suggested furlough
schedule as a part of the cost study by which management would calculate
the cost savings of temporarily laying off employees according to their
GS grade.
Contrary to the Agency's claim, the disputed proposal would not
require the Agency to take or refrain from taking any action whatever
with regard to the retention of employees. Rather, the proposal
requires management to consider certain alternative courses of action,
without placing any obligation on the Agency to adopt any of the
specified actions in lieu of a RIF. That is, Proposal I merely requires
management to consider various options before reducing the workforce,
and does not interfere with the exercise of management's right. As such
it constitutes an appropriate arrangement for employees adversely
affected by the Agency's right to conduct a RIF and therefore is within
the duty to bargain under section 7106(b)(3). Because Proposal I does
not interfere at all with the Agency's right under section 7106 to
conduct a RIF or retain employees, it is not necessary to apply any test
for determining "excessive interference" with the relevant management
right under section 7106(b)(3). National Association of Government
Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4
(1986) (Provision 2).
C. Conclusion
The Authority finds, for the foregoing reasons, that Proposal I does
not interfere with the exercise of management rights. Rather, it
constitutes an appropriate arrangement for employees adversely affected
by the Agency's decision to conduct a RIF and, therefore, is within the
duty to bargain.
IV. Union Proposal II
For the purposes of this article, wage grade employees shall be
considered GS employees, GS-5 or below. Printing employees shall
be considered GS-10 and below.
A. Positions of the Parties
The Agency argues that because Proposal II involves matters relating
to the classification of positions which are excluded from the
definition of conditions of employment under section 7103(a)(14)(B) of
the Statute, it is nonnegotiable.
The Union contends that Proposal II merely concerns how wage grade
and printing employees will be covered under the furlough formula set
out in Proposal I.
B. Analysis
The Authority finds that the Agency misinterpreted the meaning of
Proposal II. According to its language and the Union's interpretation,
which interpretation the Authority adopts, Proposal II would merely
require that in conducting the cost study contemplated by Proposal I the
Agency would calculate the cost savings of furloughing wage grade and
printing employees in the same manner as specified GS employees. Thus,
the Agency's claim that Proposal II is excluded from the definition of
conditions of employment as defined by section 7103(a)(14)(B) of the
Statute cannot be sustained.
C. Conclusion
The Authority finds, for the foregoing reasons, that Proposal II does
not concern classification matters and is within the duty to bargain.
V. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning Union Proposals I
and II. /*/
Issued, Washington, D.C., April 21, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) In finding these proposals within the duty to bargain the
Authority makes no judgment as to their merit.