[ v25 p964 ]
25:0964(79)NG
The decision of the Authority follows:
25 FLRA No. 79
FEDERAL UNION OF SCIENTISTS AND
ENGINEERS, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES,
LOCAL R1-144 SEIU, AFL-CIO
Union
and
U.S. DEPARTMENT OF THE NAVY,
NAVAL UNDERWATER SYSTEMS CENTER
Agency
Case No.0-NG-1285
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) and concerns the
negotiability of three proposals. /1/ We find that Proposals 1, 3 and
the second sentence of Proposal 2 are nonnegotiable. We find that,
except for the second sentence, Proposal 2 is negotiable.
II. Proposal 1
In the event of a reduction-in-force, the competitive area
shall be comprised of all positions assigned to NUSC, Newport
Laboratory, Newport, RI.
A. Positions of the Parties
The Agency contends that this proposal is nonnegotiable because the
competitive area proposed would encompass nonbargaining unit positions
and, consequently, the proposal would determine conditions of employment
of nonbargaining unit employees. Additionally, it asserts that the
proposal conflicts with its management rights to assign, layoff, retain
and remove employees and to reduce them in grade and pay. The Union
states only that the proposal "stands as read."
B. Analysis and Conclusion
The proposal as worded would prescribe a competitive area for
nonbargaining unit positions and employees. It is, therefore, to the
same effect as the proposal which the Authority found nonnegotiable in
American Federation of Government Employees, Local 32, AFL-CIO and
Office of Personnel Management, 22 FLRA No. 49 (1986) appeal filed sub
nom. American Federation of Government Employees, Local 32, AFL-CIO v.
FLRA, No. 86-1447 (D.C. Cir. Aug. 11, 1986). For the reasons expressed
in that decision, we find that this proposal is nonnegotiable. In view
of this conclusion, we find it unnecessary to address the Agency's
additional contentions as to the negotiability of this proposal.
III. Proposal 2
Employees impacted by the reduction-in-force who appeal the
action to the MSPB or arbitration shall have a stay of the action
pending settlement of the related appeals. Any reduction-in-force
will at the election of the employee be appealable to the MSPB or
grievance procedure, but not both. Prior to first step of the
grievance procedure, the Union shall be consulted.
A. Positions of the Parties
The Agency asserts that the first sentence of this proposal is
nonnegotiable because it conflicts with section 7106(a)(2)(A) of the
Statute. The second sentence is nonnegotiable because it conflicts with
section 7121(a)(1). The Agency makes no claim that the remaining
portion of this proposal is nonnegotiable. The Union offers no comment
on the merits of the proposal.
B. Analysis and Conclusion
As to the first sentence of the proposal the Agency relies upon
decisions of the Merit Systems Protection Board (MSPB) and argues that
the MSPB will not entertain appeals relating to Reduction-In-Force (RIF)
actions prior to the effective date -- i.e. date of execution -- of the
action. By staying the execution of the RIF until completion of an
appeal process which cannot be undertaken until execution, the Agency
argues that the proposal would effectively prevent the Agency from
carrying out RIF actions. This interpretation of MSPB's practices and
procedures has been rejected by the U.S. Court of Appeals for the D.C.
Circuit. National Treasury Employees Union v. Federal Labor Relations
Authority, 712 F.2d 669 (D.C. Cir. 1983). The Authority has
subsequently adopted and followed the Court's interpretation. See,
National Federation of Federal Employees, Local 1900 and Department of
Housing and Urban Development, 15 FLRA 465 (1984). Based on the reasons
set forth in NTEU v. FLRA, 712 F.2d 669, and Housing and Urban
Development, 15 FLRA 465, we reject the Agency's arguments as to the
first sentence of this proposal and find that it is within the duty to
bargain.
The second sentence would provide employees a choice of appealing any
RIF action to the MSPB or through the negotiated grievance procedure.
Section 7121(a) of the Statute provides that, except for those limited
matters set out in section 7121(d) and (e), the negotiated grievance
procedure shall be the exclusive procedure for resolving all matters
which fall within its coverage. The limited exceptions to the
exclusivity requirement, which are set out in section 7121(d) and (e),
include claims that an employee has been affected by a prohibited
personnel practice under section 2302(b)(1) and matters covered under 5
U.S.C. Sections 4303 and 7512. If these matters are also within the
coverage of a negotiated grievance procedure, employees have a choice of
raising the matter under either the negotiated procedure or the relevant
statutory or appellate procedure, but not both.
Since 5 U.S.C. Section 4303 concerns performance-based actions and 5
U.S.C. Section 7512 expressly excludes RIF actions from its coverage,
the only exception to the 7121(a) exclusivity requirement relevant to
RIF actions is the one relating to prohibited personnel practices. See
Johnson v. Department of Labor, 26 MSPR 447 (1985). Thus, where RIF
actions are within the coverage of the negotiated grievance procedure,
an aggrieved employee would be excepted from the exclusivity requirement
of section 7121(a) only where an allegation was made that he/she had
been affected by a prohibited personnel practice. The second sentence
of the proposal conflicts with section 7121(a) because it would provide
an exception to the exclusivity requirement with respect to any RIF
action and without regard to whether a prohibited personnel practice was
raised. We find that this portion of this proposal is nonnegotiable.
See American Federation of Government Employees, Local 1799 and
Department of the Army, Aberdeen Proving Ground, Maryland, 22 FLRA No.
62 (1986) (Provision 1).
The third sentence of the proposal requires consultation prior to the
first step of the grievance procedure. The Agency does not advert to
any reasons why this sentence of the proposal is nonnegotiable and none
are otherwise apparent.
Based on the above, we find that the second sentence of this proposal
is not within the duty to bargain; the remainder of the proposal is
negotiable.
IV. Proposal 3
In order to minimize the impact of RIF on full-time unit
members, the employer agrees to terminate all temporary,
part-time, reemployed annuitants, stay-in-schoolers, and summer
students, unless there are persuasive reasons for their retention.
A. Positions of the Parties
The Agency contends that this proposal is nonnegotiable because it
interferes with management's rights under section 7106(a)(2)(A), to
remove employees and, under section 7106(b)(1), to determine the types
of employees assigned to the organization. The Union states only that
the proposal "stands as read."
B. Analysis and Conclusion
The Agency asserts, and we agree, that this proposal is similar to
the one addressed in Federal Union of Scientists and Engineers and
Department of Navy, Naval Underwater Systems Center, 22 FLRA No. 83
(1986). The proposals in both cases would require the Agency to
terminate specified types of employees prior to taking RIF actions
against full-time unit members. Based on this effect, we found in Naval
Underwater Systems Center, 22 FLRA No. 83, that the proposal excessively
interfered with the agency's right under section 7106(a)(2)(A) to layoff
employees. The Union provides no basis for reaching a different
conclusion here. Although the proposal here contains language which
might be viewed as an attempt to limit the extent to which the proposal
interferes with management's right, the Union offers nothing to support
such a position. It is incumbent upon the Union to support a contention
that a proposal is negotiable as an "appropriate arrangement" under
section 7106(b)(3) and to explain the meaning of its proposal. National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA No. 4 (1986) (Provision 2). In the absence of
any basis in the record for reaching a conclusion different than that
reached in Naval Underwater Systems Center, 22 FLRA No. 83, we find that
this proposal is not within the duty to bargain. In view of this
conclusion we find it unnecessary to address the Agency's other
arguments as to the negotiability of this proposal.
V. Order
The Union's petition for review is dismissed insofar as it concerns
Proposals 1, 3 and the second sentence of Proposal 2. The Agency shall
upon request (or as otherwise agreed to by the parties) bargain
concerning the remainder of Proposal 2. /2/
Issued, Washington, D.C. February 27, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) During the pendency of this appeal, the Union requested to
withdraw its appeal as to Proposal 2. Before the Authority acted on the
request, the Union requested to reinstate its appeal on that proposal.
Since the Agency has offered no opposition to reinstatement and has
submitted arguments on the merits of that proposal, we have considered
that proposal in this decision.
(2) In finding this portion of Proposal 2 within the duty to bargain,
we make no judgment as to its merits.