[ v22 p553 ]
22:0553(58)NG
The decision of the Authority follows:
22 FLRA No. 58
NATIONAL TREASURY EMPLOYEES
UNION, NTEU CHAPTER 202
Union
and
DEPARTMENT OF THE TREASURY,
BUREAU OF GOVERNMENT
FINANCIAL OPERATIONS
Agency
Case No. 0-NG-680
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). It concerns the
negotiability of two Union proposals which concern treatment of union
representatives in a reduction-in-force.
II. Procedural Issues
The Agency has requested that the Union's petition be dismissed
because of what it contends are "fatal procedural defects." In support
of its motion it makes two arguments:
(1) Prior to filing the petition, the Union neither requested
nor received from the Agency a written statement that its
proposals were nonnegotiable.
(2) The Union did not support its petition with an adequate
explanation of the meaning and intent of the proposals.
The Union Disputes these contentions. As to the first, it received a
written statement from the Agency negotiations spokesperson that its
proposals were "illegal and therefore nonnegotiable." A copy of this
statement accompanied the Union's petition. In view of this written
statement of nonnegotiability, the Authority finds that the Union's
petition is properly filed. International Brotherhood of Electrical
Workers, AFL-CIO, Local 121 and Department of the Treasury, Bureau of
Engraving and Printing, Washington, D.C., 10 FLRA 198 (1982). As to the
Agency's second contention, the Union notes that it did file a statement
as to the meaning of its proposals as required by the Authority's Rules.
We find that the Agency was not prevented from developing a position on
the negotiability of the proposals. Moreover, we are able to reach a
decision based on the record in this case. The Agency's request that
the petition be dismissed based on procedural matters is denied.
III. Union Proposal 1
Existing Vacancies -- If such a position exists and a union
representative is qualified, the Employer will consider the union
representative in advance of other qualified employees for this
vacant position. If there is no union representative affected by
the RIF, the affected employee will be considered for the vacant
position.
A. Positions of the Parties
As explained by the Union, the proposal applies once the Agency has
decided to reassign employees facing separation in a reduction-in-force
(RIF) to vacant positions. Once this decision has been made by the
Agency, the proposal requires that first consideration for the
reassignment go to any qualified union representatives who are affected
by the RIF. The Union states, however, that the proposal does not
require that preferential consideration be given to a union
representative over another qualified employee who is in a tenure group
or subgroup which is superior to that of the union representatives. /1/
It is also not intended to apply to positions outside the bargaining
unit. The Union argues that this proposal amounts to an appropriate
arrangement for employees who are adversely affected by the exercise of
the Agency's right to conduct a RIF.
The Agency argues that the proposal violates a Government-wide rule
or regulation -- the Office of Personnel Management (OPM) regulations
governing RIFs. In support of this, it contends that the proposal would
require it to place union representatives in vacant positions despite
the fact that under those regulations another employee might have a
right to the position. It also asserts that the proposal is
nonnegotiable because it would affect the rights of nonunit employees.
Finally, the Agency alleges that the proposal would require it to fill
vacancies and consequently interferes with its management right to
determine the number of employees assigned to an organizational unit.
B. Analysis and Conclusions
1. Conflict with Government-wide Rules or Regulations
OPM has issued new regulations concerning RIFs at 5 CFR Part 351,
effective February 3, 1986. 51 Fed. Reg. 318-326 (1986). The Authority
has found that the OPM regulations concerning RIFs are Government-wide
rules or regulations within the meaning of section 7117(a)(1) of the
Statute. American Federation of Government Employees, AFL-CIO, Local 32
and Office of Personnel Management, 18 FLRA No. 18 (1985). Although
that case applied to previous OPM regulations, the revised RIF
regulations similarly apply generally to civilian employees of the
Federal government and are likewise Government-wide rules or
regulations.
Under these regulations an agency may in its discretion choose to
fill a vacancy with an employee facing separation, furlough or
reassignment in a RIF. When it elects to do so it must follow the
provisions of the RIF regulations. 5 CFR 351.201(b). See also Klegman
v. Department of Health and Human Services, 16 M.S.P.R. 454 (1983).
This includes recognizing whatever claim employees may have to the
particular position as a consequence of their "bumping" or "retreating"
rights. /2/ Baker v. Department of Commerce, Economic Development
Administration, 19 M.S.P.R. 432 (1984). Based on the Union's
explanation, Proposal 1 is intended to provide for observance of
"bumping" rights. However, no allowance is made for observance of
"retreating" rights which may give employees other than the union
representatives claim to the position involved. Thus, the proposal
requires the Agency to consider taking an action which ignores some of
the requirements of 5 CFR Part 351. Because of this circumstance, the
Authority finds that Union Proposal 1 conflicts with a Government-wide
rule or regulation, and is not within the obligation to bargain.
2. Interference with Management Right
Based on the language of the proposal and the Union's explanation,
the Authority interprets the proposal as applying only after the Agency
has decided to fill vacancies with employees facing displacement from
their position in a RIF. Given this, the Agency's argument that the
proposal would require it to fill vacancies is not supported. Therefore
its conclusion, based on this argument, that the proposal interferes
with its right to determine the number of employees assigned to an
organizational unit must be rejected.
3. Effect on Nonunit Employees
Based on the Union's explanation, which is compatible with the
proposal itself, the Authority interprets the proposal as applying only
to vacant positions within the bargaining unit. The proposal as it
applies to the filling of bargaining unit positions, if otherwise
negotiable, would potentially have an effect on nonunit employees.
However, that effect would only be an indirect one, potentially limiting
nonunit employees' access to vacant unit positions by requiring that
preferential consideration be given to a unit employee. The proposal
does not rise to the level of directly determining conditions of
employment of nonunit employees. See American Federation of Government
Employees, Local 32 and Office of Personnel Management, 22 FLRA No. 49
(1986) in which the Authority discussed the circumstances under which
the effect of a proposal on nonunit employees would remove a proposal
from the duty to bargain. Consequently, the Authority does not find
that this proposal would be nonnegotiable simply because of its
potential effect on nonunit employees. Association of Civilian
Technicians, Pennsylvania State Council and Pennsylvania Army and Air
National Guard, 14 FLRA 38, 39 (1984).
4. Appropriate Arrangement
Because the proposal is nonnegotiable based on its inconsistency with
a Government-wide rule or regulation, section 7106(b)(3) of the Statute
does not apply. American Federation of Government Employees, Local 1546
and Department of the Army, Sharpe Army Depot, Lathrop, California, 19
FLRA 1016, 1019 (1985), petition for review filed sub nom. American
Federation of Government Employees, AFL-CIO v. FLRA, No. 85-1689 (D.C.
Cir. Oct. 21, 1985). Therefore, the Union's argument that Union
Proposal 1 is negotiable because it is an appropriate arrangement under
section 7106(b)(3) is rejected.
IV. Union Proposal 2
Retention/Reassignment -- When there is a shortage of funds for
a Division or Branch and a union representative occupies a
position within the Division or Branch, the Bureau will consider a
furlough of that representative for the shortest possible period
exceeding 30 days.
A. Positions of the Parties
As explained by the Union, this proposal would require that the
Agency consider furloughing a union representative as an alternative to
separating him/her in a RIF. The Agency contends that this proposal
conflicts with the OPM RIF regulations. The Union counters that under
those OPM regulations agencies have the discretion to make exceptions to
the normal order or release of employees in RIFs and that this proposal
involves an action which fits within that discretion. Like Union
Proposal 1, the Union characterizes this proposal as an appropriate
arrangement for employees adversely affected by management's exercise of
its statutory authority.
B. Analysis and Conclusions
Under OPM regulations, employees are grouped in competitive levels by
the similarity of their positions and grades. Positions placed in the
same competitive level are supposed to be interchangeable. The OPM
regulations basically require that employees be "released" from their
competitive levels in inverse order of their retention standing. 5 CFR
351.601. Once released an employee is separated, furloughed or
reassigned. The regulations specifically provide that an agency may not
separate an employee while an employee with lower retention standing in
the same competitive level is on furlough. 5 CFR 351.604(b). The
effect of the Union's proposal would be to require an exception to this
prohibition. That is, under the proposal an agency could be required to
consider separating an employee while a union representative with lower
retention standing in the same competitive level is on furlough.
Contrary to the Union's argument, the Authority finds that OPM
regulations do not permit an exception to this particular provision.
The exceptions allowed by OPM regulations to which the Union refers in
its arguments go to other provisions of the RIF regulations. /3/ There
is no mention in the regulations of any exceptions which an agency could
make to the prohibition set forth in 5 CFR 351.604(b). The Authority
concludes therefore that Union Proposal 2 is inconsistent with 5 CFR
351.604(b). As found earlier, 5 CFR Part 351 is a Government-wide
regulation. Because Union Proposal 2 conflicts with a Government-wide
rule or regulation, it is not within the duty to bargain. /4/
V. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed.
Issued, Washington, D.C., July 15, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Employees are placed in "tenure groups" according to the nature
of their appointment; i.e., career, career-conditional, indefinite,
etc. "Subgroup" placement is based on veterans status. 5 CFR 351.501.
(2) "Bumping" is the right of one employee to displace another
employee in a position on the basis of subgroup superiority.
"Retreating" is the right to displace another employee in a position
which is one from which or through which the employee was promoted and
which is occupied by an employee with lower "retention standing." 5 CFR
351.701. "Retention standing" is an employee's ranking relative to
other employees based on group, subgroup, length of service and
performance rating. 5 CFR Part 351, Subpart E.
(3) 5 CFR 351.607 and 351.608 allow exceptions to 5 CFR 351.601 and
351.603.
(4) For the reasons given in section III(B)(4) of this decision,
section 7106(b)(3) of the Statute does not apply.