[ v31 p566 ]
31:0566(36)NG
The decision of the Authority follows:
31 FLRA NO. 36
31 FLRA 566
23 FEB 1988
NATIONAL TREASURY EMPLOYEES UNION
Union
and
NUCLEAR REGULATORY COMMISSION
Agency
Case No. 0-NG-1442
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 19 proposals. Three proposals deal with
sections of Article 27 (Performance Appraisals) and 16 deal with
sections of Article 38 (Reduction in Force). We will identify
each proposal by its corresponding section number. The Agency has
withdrawn its allegations of nonnegotiability as to Article 27,
Section 27.11 (Agency Statement of Position at 3), and as to
Article 38, Section 38.8 (id. at 10). The proposals as to those
sections will not be considered.
For the reasons set forth below, the petition for review as
to Section E of Proposal 38.2 is dismissed; we find that Proposal
27.13.1.1, Section C of Proposal 38.17, and Proposal 38.32 are
outside the duty to bargain, and that all the remaining proposals
are negotiable.
For the convenience of the reader, we have numbered the
sentences in some proposals.
II. Proposal 27.8
(1) At a minimum, an arbitrator can determine management has
not properly applied the elements and standards it established,
or that it has applied the elements or standards in violation of
law, regulation, contract or any appropriate general,
non-quantitative review criterion.
(2) Among the remedies available to an arbitrator is to
order that the employee's previous appraisal be used and
continued in effect until the proper evaluation is rendered
following his/her award. (3) All personnel actions involving the
incorrect appraisal would be corrected based on the use of the
previous appraisal. (4) Furthermore, the arbitrator can order a
correction of an evaluation score with retroactive effect so long
as it is based on the application of any properly established
elements and standards to the employee's work. (5) When enforcing
law or regulation, the arbitrator can impose any remedy
appropriate under that law or regulation or that would be
available to any other appropriate authority as that term is used
in 5 U.S.C. Section 5596.
A. Positions of the Parties
The Agency acknowledges that an arbitrator has the authority
to review the question of whether management has properly applied
its own performance standards. The Agency argues, however, that
the proposal is nonnegotiable, because it grants authority to an
arbitrator beyond the boundaries of an arbitrator's authority as
defined by Authority case law. The Agency maintains that the
words "(a)t a minimum" in the proposal remove any limitations on
the arbitrator's authority. Further, the Agency argues that by
allowing an arbitrator to grant retroactive remedies, the
proposal permits the arbitrator to substitute his or her own
judgment for that of management as to appropriate performance
standards, in violation of section 7106(a)(2)(A) and (B) of the
Statute. The Agency maintains that the last sentence of the
proposal applies remedies under the Back Pay Act, 5 U.S.C. 5596,
to performance appraisal grievances and is, therefore, excluded
as a condition of employment under section 7103(a)(14)(C) of the
Statute.
The Union contends that the proposal does not affect the
content of performance standards; rather, it deals only with the
application of management's established standards. The Union
states that the Authority has limited the remedial authority of
arbitrators in performance appraisal cases. The Union argues that
those limitations are inconsistent with other developments in the
arbitration field.
B. Discussion
We find that Proposal 27.8 is a negotiable procedure
governing the grievance and arbitration of performance appraisal
matters. In Social Security Administration and American
Federation of Government Employees, AFL - CIO, 30 FLRA 1156
(1988), we discussed in detail the role of arbitrators in
resolving grievances which concern these matters. We held that:
(A)rbitrators may resolve a grievance by an employee
claiming to have been adversely affected by management's
application of the established elements and standards.
Arbitrators may sustain the grievances if they determine that
management had not applied the established elements and standards
or that management had applied the established elements and
standards in violation of law, regulation, or a properly
negotiated provision of the parties' collective bargaining
agreement. As a remedy, the arbitrator may direct that the
grievant's work product or performance be reevaluated under the
established elements and standards if not applied, or in
accordance with the law, regulation or agreement provision with
which management failed to comply.
Id., slip op. at 4.
The first sentence of Proposal 27.8 is consistent with the
principles set forth in Social Security Administration. The
words, "(a)t a minimum," do not expand the power of an arbitrator
beyond that which is appropriate under our decision in Social
Security Administration; they merely establish what an arbitrator
may do in performance appraisal cases. Accordingly, we find that
the first sentence of the proposal is within the Agency's duty to
bargain.
The second sentence of Proposal 27.8 would allow an
arbitrator to order that a grievant's previous appraisal remain
in effect until a proper reevaluation can be made by the Agency.
The third sentence would require that all personnel actions
involving an incorrect appraisal be corrected based on the
previous appraisal. The fourth sentence would allow a retroactive
correction of an evaluation so long as the correction is based on
the application of properly established elements and standards.
Contrary to the Agency's arguments, the second, third, and
fourth sentences do not violate management's rights under section
7106(a)(2)(A) and (B). In Social Security Administration, we held
that in performance appraisal cases, an arbitrator may: (1)
cancel an improper performance appraisal or rating; and (2)
direct management to grant the grievant the rating which is
appropriate under the established elements and standards. Id. at
1160. If the record does not enable an arbitrator to determine
what the appropriate rating should be, the arbitrator should
direct that the grievant's performance be reevaluated by
management. Id. at 1160-61.
The second, third, and fourth sentences of the proposal are
consistent with the remedial authority of arbitrators as
discussed in Social Security Administration. If an arbitrator
finds that an appraisal is incorrect, the arbitrator may properly
order, as an interim measure, the retention of the previous
appraisal and direct that no personnel actions be taken on the
basis of the defective appraisal. See U.S. Immigration and
Naturalization Service and American Federation of Government
Employees (National Immigration and Naturalization Service
Council), 27 FLRA 488 (1987), in which the Authority denied
exceptions to an arbitrator's award ordering that ratings given
to employees under a new performance appraisal plan which was
improperly implemented be nullified and a new rating calculated
for each employee according to the standards of the old plan.
Therefore, sentences two, three, and four are within the Agency's
duty to bargain.
The fifth sentence would allow an arbitrator to provide any
legal remedy, including remedies available under the Back Pay
Act, in performance appraisal cases. The Back Pay Act is
available as a remedy in the reversal of personnel actions which
are found by an appropriate authority to be unjustified or
unwarranted and which result in the withdrawal or reduction of
all or part of the pay, allowances, or differentials of the
employee. See section 7122(b) of the Statute: 5 U.S.C.
5596(b)(1); see also Federal Grain Inspection Service and
National Council of Federal Grain Inspection Local, American
Federation of Government Employees, Local 3769, 26 FLRA 582
(1987); (employee erroneously furloughed under applicable
regulations ordered by arbitrator to be made whole for lost wages
under Back Pay Act). Spezzaferro v. FAA, 24 M.S.P.R. 25 (1984)
(Merit Systems Protection Board (MSPB) holds that it has
authority, like that of an arbitrator, or FLRA on review, to
award backpay under 5 U.S.C. 5596(a)).
We find no merit in the Agency's argument that the parties
cannot negotiate a provision which allows the imposition of legal
remedies, including backpay, by an arbitrator or other
appropriate authority in correcting unwarranted or unjustified
personnel actions. Accordingly, sentence five is within the
Agency's duty to bargain.
III. Proposal 27.13.1.1
27.13
Subject to the applicable provision of this Agreement, OPM
regulations and 5 U.S.C. Section 4303, the NRC may reduce in
grade or remove an employee for unacceptable performance. When
taking such action, the NRC will do so in accordance with the
following procedure. An employee whose reduction in grade or
removal is proposed under this section is entitled to --
27.13.1 at least 30 calendar days advance written notice of
the proposed action which identifies:
27.13.1.1 copies of all of the specific instances of
unacceptable performance by the employee relied upon by
management in proposing the action. The specification shall be
limited to instances which occurred after the opportunity period
began(.)
27.13.1.2 identification of the critical element(s) of the
employee's position involved in each instance of unacceptable
performance;
27.13.1.3 the right to representation by an attorney or
other representative;
27.13.1.4 the right to answer orally and/or in writing;
and
27.13.1.5 the right to have access to all information relied
upon by management in proposing the action, including information
favorable to the employee.
(Only the underscored portion is in dispute.)
A. Positions of the Parties
The Agency argues that Proposal 27.13.1.1 is nonnegotiable
because it is inconsistent with 5 U.S.C. 4303(c)(2)(A), which
provides that an agency's decision to reduce in grade or remove
an employee "may be based only on those instances of unacceptable
performance by the employee" that "occurred during the 1-year
period ending on the date of the notice (of proposed action)."
Agency Statement of Position at 7. The Agency claims that by
limiting the incidents of unacceptable performance which can be
included in a proposed action to those which occurred during the
improvement period, Proposal 27.13.1.1 precludes management from
relying on incidents of unacceptable performance which occurred
prior to that period, as is permitted by law. The Agency also
asserts that the proposal is nonnegotiable because it covers a
subject which is specifically provided for in 5 U.S.C.
4303(c)(2)(A).
The Union argues that once the Agency affords an employee a
period in which to improve performance under 5 U.S.C. 4303, any
action taken against the employee may be based only on the
performance of that employee during the opportunity period.
According to the Union, the disputed portion of the proposal
requires the Agency to prove that an employee has failed to
perform at an acceptable level by citing specific examples of
unacceptable performance during the opportunity period. Union
Response at 13. The Union argues that its proposal is negotiable
because it reflects the state of the law as interpreted by the
MSPB.
B. Discussion
Proposal 27.13.1.1 provides that the Agency may include in a
notice of proposed disciplinary action only those specific
instances of unacceptable performance by an employee which
occurred during the opportunity period. The proposal precludes
management from relying on any incidents of unacceptable
performance which occurred prior to the improvement period when
it proposes action against an employee based on unacceptable
performance. We find that Proposal 27.13.1.1 is inconsistent with
law and outside the duty to bargain under section 7117(a)(1) of
the Statute.
Under 5 U.S.C. Chapter 43, management may evaluate an
employee at any time during the appraisal period and take
disciplinary action against that employee if the employee's level
of performance is unacceptable in one or more critical elements.
See also 5 C.F.R. 432.203(a) (1987). However, before an
agency may initiate an action under 5 U.S.C. Chapter 43 for
unacceptable performance, it must comply with certain statutory
and regulatory requirements, which include notifying employees of
performance deficiencies and affording them an opportunity to
demonstrate acceptable performance. 5 U.S.C. 4302(b)(6); 5 C.F.R.
432.101(a). See also National Federation of Federal Employees,
Local 1853 and U.S. Attorney's Office Eastern District of New
York, Brooklyn, N.Y., 29 FLRA 94, 103 (1987).
5 C.F.R. 432.101(a) (implementing 5 U.S.C. 4302(b)(6))
provides for the discipline or removal of "employees who continue
to have unacceptable performance but only after an opportunity to
demonstrate acceptable performance." Proof that an agency has
provided an employee the opportunity to improve is a prerequisite
to the agency's formal proposal to take disciplinary action under
5 U.S.C. 4303.
The Union states that Proposal 27.13.1.1 reflects the
requirement of 5 U.S.C. Chapter 43 as it is interpreted in MSPB
case law. The MSPB has discussed extensively an agency's
obligation to provide an opportunity for employees to improve
their unacceptable performance. The MSPB has held that the "fact
that an agency must comply with 5 U.S.C. Section 4302(b)(6) prior
to proposing a reduction in grade or removal for unacceptable
performance supports the finding that the requirement is not a
procedure to be followed in taking the action; rather it is a
substantive condition precedent." Sandland v. General Services
Administration, 23 M.S.P.R. 583, 589 (1984) (emphasis in
original, citation omitted).
If at the end of the opportunity period, the employee
demonstrates that he or she has met minimum performance
standards, an agency is precluded from proposing and taking a
performance-based action. See Zoltowski v. Department of the
Army, 26 M.S.P.R. 525, 527 (1985). See also Siedle v. Department
of Interior, 35 M.S.P.R. 241, 249 (1987). If an agency elects to
demote or remove an employee under chapter 43 and provides the
employee with an opportunity to improve, "it cannot then demote
or remove an employee who has satisfactorily performed during the
improvement period for the same error which preceded and
precipitated the warning notice and improvement period." James v.
Veterans Administration, 27 M.S.P.R. 124, 127 (1985).
Therefore, in order to sustain an action against an employee
for unacceptable performance, an agency need only show that the
employee's performance did not improve during the period
of an opportunity to improve performance. It is not necessary to
prove unacceptable performance prior to that period. Wilson v.
Department of Navy, 24 M.S.P.R. 583 (1984). Relying on the cases
discussed above, the Union maintains that only those instances of
unacceptable performance which occurred during the period for
improvement are relevant and may be relied on by an Agency in
proposing a disciplinary action under 5 U.S.C. Chapter 43.
We agree with the Union that the MSPB requires the Agency to
prove only that an employee continued to perform at an
unacceptable level during the period for improvement before it
may propose a disciplinary action against that employee under 5
U.S.C. 4303. However, we disagree with the Union's position that
since the Agency is required to prove only that an employee
performed at an unacceptable level during the performance period,
the Agency may be precluded from also relying on instances of
unacceptable performance which occurred at other times in the
appraisal cycle. Section 4303(c)(2) provides that the decision to
retain, reduce in grade, or remove an employee may be based only
on "those instances of unacceptable performance . . . which
occurred during the 1-year period ending on the date of the
notice (of proposed action) . . . in connection with the
decision; and for which the notice and other requirements of this
section are complied with."
Therefore, in its decision to take action against an
employee for unacceptable performance, the Agency may rely on
instances of unacceptable performance which occurred up to 1 year
before the date of the notice of the proposed action. The Agency
must, however, notify the employee of the unacceptable
performance on which it will rely to discipline the employee.
Section 4303(b)(1)(A)(i) requires that the Agency identify, in
its notice, the "specific instances of unacceptable performance
by the employee on which the proposed action is based." We read 5
U.S.C. 4303(b) as requiring the Agency to notify an employee of
every specific instance of unacceptable performance on which the
Agency will rely in its decision to remove the employee under
Chapter 43.
By limiting the citation of instances of unacceptable
performance to those which occurred during the employee's
improvement period, Proposal 27.13.1.1 would preclude the Agency
from relying on instances of unacceptable performance which
occurred prior to the opportunity to improve. Under the proposal,
the Agency could not notify an employee that instances of
unacceptable performance which occurred before the opportunity
period will be considered. Since the Agency could not
notify the employee, the Agency could not rely on those instances
of unacceptable conduct without violating the notice requirements
of section 4303. 5 U.S.C. 4303(c)(2).
We find, therefore, that Proposal 27.13.1.1 is inconsistent
with 5 U.S.C. 4303(c)(2)(A) and is outside the duty to bargain
under section 7117(a)(1) because it would preclude management
from relying on incidents of unacceptable performance prior to
the improvement period as support for proposed disciplinary
action against an employee under chapter 43 of title 5 of the
United States Code.
IV. Proposal 27.24
The parties agree to form a joint committee to review any
element and standard which is alleged to be inconsistent with the
NRC's regulations as well as government-wide rule or
regulation.
A. Positions of the Parties
The Agency argues that Proposal 27.24 would subject the
development of the Agency's performance elements and standards to
a review for legality by non-management individuals. The Agency
contends that the proposal would directly interfere with
management's right to identify and determine the content of
performance elements and standards. The Agency contends that the
proposal interferes with the Agency's rights under section
7106(a)(2)(A) and (B) to direct employees and assign work.
The Union maintains that the Agency's interpretation of
Proposal 27.24 is inconsistent with the clear wording of the
proposal. The Union states that the joint committee would review
an element and standard which is alleged to be inconsistent with
Agency and Government-wide rules and regulations. The Union
states that the proposal presupposes that the Agency has already
established elements and standards. According to the Union,
Proposal 27.24 does not require that the Agency adopt the
conclusions and recommendations of the review committee. The only
requirement is that a committee be formed to investigate
allegations concerning the legality of the Agency's elements and
standards. The Union contends that the proposal is fully
consistent with 5 U.S.C. 4302 and Federal Personnel Manual (FPM)
chapter 430, because it establishes a procedure under section
7106(b)(2) of the Statute for employees to participate in the
establishment of elements and standards.
B. Discussion
We find Proposal 27.24 to be within the duty to bargain.
Proposals which provide for joint labor-management committees
whose purpose is to make recommendations concerning conditions of
employment have been found to be negotiable. See Overseas
Education Association and U.S. Department of Defense Dependents
Schools, 28 FLRA 700, 705-08 (1987), petition for review as to
other matters filed sub nom. Overseas Education Association, Inc.
v. FLRA, No. 87-1468 (D.C. Cir. Sept. 8, 1987). In American
Federation of Government Employees, AFL - CIO, Local 3804 and
Federal Deposit Insurance Corporation, Chicago Region, Illinois,
7 FLRA 217, 229-30 (1981), the Authority held that a proposal to
create a joint labor-management committee to recommend changes in
the agency performance appraisal system constituted a negotiable
procedure. The agency retained the discretion to accept or reject
any of the committee's recommendations. See also AFGE, Local 3748
v. FLRA, 797 F.2d 612, 616-17 (8th Cir. 1986) (5 U.S.C.
4302(a)(2) allows employees to contribute ideas concerning the
establishment of performance standards which management may
accept or reject).
Proposal 27.24 does not mandate changes in the performance
elements and standards established by the Agency, nor does it
require negotiations over any particular changes. Rather, the
proposal would establish a purely advisory committee which would
be responsible for determining the merit of allegations that the
performance elements and standards established by management do
not comply with applicable rules and regulations. The proposal
would not enable the Union to participate in the deliberative
process leading to the exercise of management's rights under
section 7106 of the Statute. The authority of the proposed
committee is limited to making recommendations concerning the
legality of particular elements and standards under applicable
rules and regulations. See generally Newark Air Force Station and
American Federation of Government Employees, Local 2221, 30 FLRA
616 (1987), which discusses management rights in the context of
challenges to the legality of performance standards. Therefore,
Proposal 27.24 does not interfere with the Agency's right to
establish performance standards.
We reject the Agency's assertion that Proposal 27.24
interferes with its right to assign work. Participation on the
committee proposed by the Union does not involve the official
prescribed duties of unit employees. The Authority has held that
where participation on a joint labor-management
committee does not involve official, prescribed duties of
employees, membership on the committee does not concern the
assignment of work within the meaning of section 7106(a)(2)(B) of
the Statute. See Local 3, International Federation of
Professional and Technical Engineers, AFL - CIO and Naval Sea
Systems Command Detachment, Pera (Crudes) Philadelphia, 25 FLRA
714, 718. Additionally, since the Agency does not explain, nor is
it otherwise apparent, how the proposal would interfere with the
supervision and guidance of employees in the performance of their
duties on the job, we have no basis for finding that Proposal
27.24 interferes with the Agency's right to direct employees
under 7106(a)(2)(A) of the Statute. See National Treasury
Employees Union and Internal Revenue Service, 28 FLRA 40, 43
(1987) (discussing an agency's right to direct employees).
Accordingly, the proposal is within the duty to bargain.
V. Proposal 38.1
A. Prior to conducting a reduction-in-force (RIF) the
Employer shall conduct a cost study to determine whether
instituting a furlough or retraining program for affected
employees would be more cost effective than conducting a RIF.
Before initiation the Union shall be consulted as to methodology.
Within three days of the completion of this study, a copy will be
provided to the Union and the Union shall be given an opportunity
to provide comments at least thirty (30) days before the RIF is
announced.
A. Positions of the Parties
The Agency contends that Proposal 38.1 is nonnegotiable
because it conditions the exercise of management's right to
conduct a reduction-in-force (RIF) on the completion of a cost
study. The Agency also argues that the proposal is nonnegotiable
because it concerns the methodology of the cost study.
The Union states that Proposal 38.1 provides for the
initiation of a cost study prior to conducting a RIF to determine
if less costly alternatives to a RIF are available. The Union
states that the second part of the proposal sets forth the
procedure to be followed in conducting and disseminating the
study. The Union maintains that the second portion of the
proposal requires the Agency to consult with the Union concerning
the methodology to be used in conducting the cost study, but does
not mandate that a certain methodology be used. The Union states
further that "(a)fter consulting with the Union the
Agency will be free to exercise its discretion." Union Response
at 17. The Union also contends that Proposal 38.1 is an
appropriate arrangement.
B. Discussion
We find that Proposal 38.1 is within the duty to bargain
under the Statute.
Proposal 38.1 requires a cost study by the Agency to
determine whether less costly alternatives to a RIF are
available. Proposal 38.1 does not require the Agency to take or
refrain from taking any action regarding the retention of
employees. The proposal only requires the Agency to consider
alternative courses of action before implementing its decision to
conduct a RIF. The exercise of management's right to conduct the
RIF is not in any way dependent upon the outcome of the cost
study. Further, Proposal 38.1 does not dictate that the Agency
use a particular methodology when conducting the study.
The proposal is to the same effect as Proposal I in American
Federation of Government Employees, AFL - CIO and Department of
Housing and Urban Development, 21 FLRA 354 (1986). That proposal
required the agency to conduct a cost study to determine whether
instituting a furlough or retraining program would be less costly
than conducting a RIF. The proposal also suggested a furlough
schedule as part of the cost study by which management would
calculate the cost savings of temporarily laying off employees
according to their General Schedule grade.
The Authority found that the proposal in Department of
Housing and Urban Development, 21 FLRA at 356, would not require
the agency to take or refrain from taking any action regarding
the retention of employees. Rather, the proposal only required
the agency 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. The Authority concluded that
the proposal did not directly interfere with management's rights
under section 7106 of the Statute and, therefore, that it was
unnecessary to determine whether the proposal constituted an
appropriate arrangement for employees adversely affected by the
exercise of management's right to conduct a RIF.
Since Proposal 38.1 does not condition the exercise of the
Agency's right to conduct a RIF upon the outcome of the cost
study and does not require any action concerning the
implementation of a RIF, it has the same effect as Proposal I in
AFGE and HUD. We conclude, therefore, consistent with the
decision in AFGE and HUD, that Proposal 38.1 does not directly
interfere with management's right to lay off under section
7106(a)(2)(A) of the Statute. Because Proposal 38.1 does not
interfere with the Agency's rights to conduct a RIF, we find it
unnecessary to determine whether the proposal is an appropriate
arrangement within the meaning of section 7106(b)(3) of the
Statute. See AFGE and HUD, at 357. See also American Federation
of State, County and Municipal Employees, Local 2477, AFL - CIO
and Library of Congress, 23 FLRA 204, 206 (1986).
In support of its contentions, the Agency cites three cases
regarding cost studies in a "contracting out" context: American
Federation of Government Employees, Local 1546 and Department of
the Army, Sharpe Army Depot, Lathrop, California, 19 FLRA 1016,
1021 (1985), remanded as to other matters sub nom. American
Federation of Government Employees, Local 1546 v. FLRA, No.
85-1689 (D.C. Cir. Nov. 17, 1986), Decision on remand, 25 FLRA
958 (1987); American Federation of Government Employees, AFL -
CIO, Local 1923 and Health Care Financing Administration,
Baltimore, Maryland, 17 FLRA 661 (1985); and American Federation
of Government Employees, AFL - CIO, Local 1622 and The
Directorate Facilities and Engineering Department of the Army,
Fort George G. Meade, Maryland, 17 FLRA 429 (1985).
In Health Care Financing Administration and Fort George G.
Meade, the Authority determined that the proposals prescribed
standards to be used by management to evaluate the factors on
which a determination to contract out could be based. The
Authority concluded that the proposals were nonnegotiable because
they interfered with management's right under section
7106(a)(2)(B) of the Statute to engage in preliminary discussions
and deliberations concerning the relevant factors on which
contracting out determinations will be made.
In Sharpe Army Depot, the provision relating to contracting
out (Provision 2) required only that prior to contracting out,
the agency was to notify the union when a cost analysis or study
was conducted so that the union might review the study. The
provision did not prescribe standards to be used by management to
evaluate the factors on which a determination to contract out
could be based. The Authority found that the provision was
nonnegotiable because it imposed prior conditions on the exercise
of the agency's right under section 7106(a)(2)(B) to engage in
deliberative discretion.
In contrast to the proposals in Health Care Financing
Administration and Fort George G. Meade, Proposal 38.1 does not
require the Agency to take or refrain from taking any action.
Moreover, Proposal 38.1 does not affect management's decision as
to whether or not it will conduct a RIF. Rather, the proposal
merely requires the Agency to assess other alternatives available
to it before it implements its decision to conduct a RIF. We
find, therefore, that Proposal 38.1 is distinguishable from the
proposals in those two cases. As to the determination of
nonnegotiability regarding the provision in Sharpe Army Depot,
which simply required the agency to notify the union of its cost
study and allow the union to review the study, we find that
conclusion to be inconsistent with our analysis and determination
regarding Proposal 38.1, and it will no longer be followed.
VI. Proposal 38.2
A. A RIF is the release of a competing employee from his/her
competitive level by separation, demotion, furlough for more than
30 days, or reassignment requiring displacement, when the
release is required because of lack of work; shortage of funds;
reorganization; reclassification due to erosion of duties when
such action will take affect after an agency has formally
announced a reduction-in-force in the employee's competitive area
and when the reduction-in-force will take effect within 180 days;
or the exercise of reemployment rights or restoration right.
B. The terms of this article also apply to a transfer of
function when the work of one or more employees is moved from one
competitive area to another regardless of whether or not such
movement is made under authority of a statute, Executive order,
reorganization plan, or other authority.
C. For furloughs of less than thirty (30) days, the
Employer shall utilize a retention list and release employees
according to the procedures set forth herein when conducting
RIF.
D. Before conducting a short term furlough of less than
thirty (30) days, the Employer shall offer affected employees a
shorter prorated work week spread over the necessary
number of weeks in lieu of a complete furlough for a defined
length.
E. RIF procedures shall be utilized whenever the FPM gives
the Agency discretion to do so.
A. Positions of the Parties
The Agency contends that Sections A and B of Proposal 38.2
are nonnegotiable because they paraphrase 5 C.F.R. 351.201(a)(2)
and 351.301, respectively, and would require the Agency to comply
with those terms regardless of whether the regulations were
subsequently revised. The Agency argues further that Sections A
and B of Proposal 38.2 are nonnegotiable under the Authority's
decision in National Treasury Employees Union and Department of
Energy, 19 FLRA 224, 232 (1985), because they impose an
independent contractual requirement on management's discretion
regarding a reduction-in-force and, therefore, interfere with
management's rights under the Statute. The Agency argues that
sections C, D and E of Proposal 38.2 violate the Agency's rights
under section 7106(a)(2)(A) and (B) of the Statute to lay off
employees, assign work and determine the personnel by which
Agency operations are conducted.
The Union contends that the Agency has discretion to
negotiate over the subject of this proposal. The Union asserts
that the proposal requires the Agency to use RIF regulations when
employees will be separated under short-term furloughs and in
other situations where the FPM grants the Agency the discretion
to do so. The Union states that the proposal only establishes the
procedures which management will follow after the Agency has
determined that it must take certain actions. Finally, the Union
asserts that the proposal is similar to proposals which have been
found to be negotiable appropriate arrangements under section
7106(b)(3) of the Statute.
B. Discussion
1. Management Rights
We note at the outset that whether the Office of Personnel
Management (OPM) RIF regulations apply to the employees in this
case would affect the negotiability of the proposals only if
those proposals are inconsistent with those regulations. If the
regulations do not apply, it would not be necessary to address
the issue of whether or not the proposal is inconsistent with the
regulations. See Congressional Research Employees
Association and Library of Congress, Congressional Research
Service, 25 FLRA 306, 309 at note 2 (1987). Where management
rights issues are involved, the question of whether employees are
covered by the regulations is irrelevant. If the content of the
regulation constitutes a substantive restriction on the exercise
of a management right, the fact that the proposal restates the
regulation would not make that proposal negotiable. See National
Federation of Federal Employees, Local 29 and Department of
Defense, HQ U.S. Military Entrance Processing Command, 29 FLRA
726, 731 (1987).
As to the applicability of the OPM RIF regulations to unit
employees in this case, the parties agree that the Agency is an
"excepted service agency" and that its employees have been
appointed to the excepted service. Agency Statement of Position
at 20; Union Response to Agency Statement of Position at 18. See
also 5 C.F.R. 351.202(a). Contrary to the Union's position,
however, excepted service employees are not excluded from the
coverage of the RIF regulations under 5 C.F.R. 351.202(b) or (c).
In fact they are specifically covered by provisions related to
competitive levels, 5 C.F.R. 351.403(b)(1) and (2), and retention
order, 5 C.F.R. 351.502. Contrary to the Union's position,
therefore, we find that the employees in this case are subject to
the OPM RIF regulations to the same extent as any other excepted
service employees in the Federal Government.
As stated above, the employees in this case are excepted
service employees who are subject to the OPM RIF regulations. 5
C.F.R. 351.501(a)-(c) and 351.705(a)(3). Under those regulations,
the retention standing of excepted service employees must be
determined in a way that corresponds to the requirements for
competitive service employees as set forth in subpart E of Part
351 of title 5 of the Code of Federal Regulations. 5 C.F.R.
351.502. In the absence of any indication to the contrary in the
record, we will interpret the proposals in this case as including
provisions for retention standing which are consistent with the
requirements of the OPM RIF regulations, for example, as they
pertain to length of service, 5 C.F.R. 351.503, and performance
credit, 5 C.F.R. 351.504.
Section A of Proposal 38.2 defines the actions which
constitute a reduction-in-force. Though the terms in Section A
are in a different order, they are the same terms as those set
forth in the regulatory definition of a reduction-in-force. 5
C.F.R. 351.201(a)(2). We find, therefore, that Section A is not
inconsistent with that regulation.
As to whether Section A interferes with management's right
to lay off employees under section 7106(a)(2)(A), in American
Federation of Government Employees, AFL - CIO, Local 1770 and
Department of the Army, Fort Bragg Dependent Schools, Fort Bragg,
North Carolina, 28 FLRA 493, 518-19 (1987), petition for review
as to other matters filed sub nom. Department of the Army, Fort
Bragg Dependent Schools Fort Bragg, North Carolina v. FLRA, No.
87-2661 (4th Cir. Sept. 22, 1987), the Authority found that a
provision which defined the term "reduction-in-force" was
negotiable. The Authority found that the provision did not
prevent management from laying off or retaining employees nor
does it determine which employees will be layed off or retained.
Id. Like the provision in AFGE, Local 1770 and Department of the
Army, Section A also simply states the actions which will
constitute a reduction-in-force. It does not prevent management
from laying off employees and does not determine who should be
layed off when a decision is made that layoffs are necessary.
Consistent with AFGE, Local 1770 and Department of the Army, we
find that Section A does not interfere with management's rights
under section 7106(a)(2)(A) of the Statute and is within the duty
to bargain.
Section B of Proposal 38.2 requires the use of RIF
procedures in connection with a transfer of function. A transfer
of function is defined as the movement of the work of one or more
employees from one competitive are to another. 5 C.F.R. 351.301.
These regulations are applicable to the excepted service. 5
C.F.R. 351.202. The regulations provide for the use of RIF
procedures after the employees identified with the function to be
transferred have been transferred to the gaining competitive
area. 5 C.F.R. 351.302(a). The regulations specify two methods
for identifying which employees will transfer with the function.
5 C.F.R. 351.303(a) and (c). Under the second method, RIF
procedures may be used as a method of identifying employees to be
transferred with the function, but only for those positions to
which the first method provided in the regulations does not
apply. 5 C.F.R. 351.303(b) and (d). Where RIF procedures may be
used under the second method, employees will be identified in
inverse order of retention standing to be transferred with the
function. Since Section B merely requires that these procedures
will apply to transfers of function, but does not specify the
manner in which they will apply, we interpret Section B as
requiring the procedures to be applied consistent with the
regulation.
However, in determining which employees will transfer with
the function based upon inverse order of retention standing as
provided in 5 C.F.R. 351.303(d), Section B of Proposal
38.2 directly interferes with management's right to assign
employees under section 7106(a)(2)(A). The transfer of function
involves the reassignment of positions and employees to the
gaining competitive area. By applying the RIF procedures to that
reassignment, the proposal requires the use of retention standing
as the criterion by which management decides which employees to
transfer. Substantive criteria governing management's
determination of the employees it will reassign or transfer
directly interferes with management's right to assign employees
under section 7106(a)(2)(A). See CREA and Library of Congress.
Section C prescribes the criteria by which management will
decide the particular employees who will be furloughed. Section C
requires the use of a retention list for furloughs of less than
30 days and requires management to determine which employees
will be "released" or furloughed based on the order of release
prescribed in the RIF procedures set forth in the proposed
agreement. See, for example, Proposal 38.18. The effect of
Section C, therefore, is the same as Section B: the use of RIF
procedures restricts management's choice of employees for
reassignment or lay off and thus directly interferes with
management's rights under section 7106(a)(2)(A).
In finding that Sections B and C directly interfere with
management's rights, we distinguish the Authority's decision in
National Association of Government Employees, Local R7-23 and
Department of the Air Force, Headquarters 375th Air Base Group
(MAC), Scott Air Force Base, Illinois, 26 FLRA 916 (1987)
(Proposal 2). The proposal in that case required that the RIF
principles prescribed in the agency's regulations would apply
when employees were separated or downgraded through no fault of
their own. It did not restate those principles in the contract
but referred to them as they were set forth in the agency's
regulation. Sections B and C restate OPM RIF regulations.
Therefore, these sections would constitute separate contractual
limitations on management's rights. See NFFE, Local 29 and
Department of Defense, 29 FLRA at 731 (Provision 2).
Section D of Proposal 38.2 requires management to offer
employees who are subject to a short-term furlough of less than
30 days an opportunity to work a shorter prorated work week
rather than be furloughed for the specified number of consecutive
days. We interpret this requirement to refer only to weeks within
a given fiscal year, and conclude therefore that the proposal
would not cause the Agency to violate the Antideficiency Act, 31
U.S.C. 1341(a). Section D would not interfere with management's
right to lay off employees or determine the personnel
by which Agency operations are conducted. Under the proposal,
management retains the discretion to determine: (1) whether it
will furlough employees; (2) which employees will be furloughed;
(3) when employees will be furloughed; and (4) the furlough
schedule which is compatible with the Agency's workload
requirement. Further, even if every employee subject to a
furlough were to choose to work a shorter workweek over a
specified period in lieu of a continuous furlough, the Agency
would still be free to lay off employees, or not, as it deemed
necessary and for as long as it deemed appropriate. See American
Federation of Government Employees, Local 32, AFL - CIO and
Office of Personnel Management, 22 FLRA 307, 308 (1986),
affirmed mem. sub nom. OPM v. FLRA, No. 86-1482 (D.C. Cir. Sept.
24, 1987).
Moreover, we find that Section D would not interfere with
management's right to assign work under section 7106(a)(2)(B).
The impact on the Agency's ability to accomplish its work results
from the Agency's decision to furlough employees and not from the
requirement in this proposal that employees be allowed to
continue to work shorter workweeks. Whether employees are
furloughed for a specific number of consecutive days or a
specific number of hours each week, the amount of worktime lost
due to furlough would be the same. In addition, the proposal
would not affect management's right to determine which employees
or positions will be assigned particular duties nor its right to
determine when those duties will be performed. In OPM v. FLRA#
the court affirmed the Authority's decision as to other matters,
but declined to affirm the Authority's finding that a proposal
which provided employees the option of a continuous furlough
directly interfered with the right to assign work. We agree with
the court's decision. Consequently, to the extent that the
Authority's decision in OPM, 22 FLRA 307, is inconsistent with
this result, it will no longer be followed. See OPM v. FLRA.
Section E requires the use of RIF procedures wherever
management has discretion to use those procedures under OPM
regulations. The Union does not indicate the areas of discretion
to which the proposal refers. Consequently, we are unable to
determine whether the discretion referred to would constitute the
exercise of a management right and whether, like Sections B and C
above, the use of retention criteria under the RIF procedures
would restrict the exercise of management's rights. In the
absence of evidence in the record which would enable us to assess
the negotiability of Section E of Proposal 38.2, we will dismiss
the Union's petition for review as to that section. See
National Federation of Federal Employees, Local 15 and Department
of the Army, U.S. Army Armament, Munitions and Chemical Command,
Rock Island, Illinois, 30 FLRA 1046, 1076-78 (1988).
2. Appropriate Arrangements
We have found that Sections B and C directly interfere with
management's rights under section 7106(a)(2)(A) of the Statute.
The Union also claims that Proposal 38.2 is an appropriate
arrangement under section 7106(b)(3) for employees adversely
affected by management's decision to transfer a function or to
conduct a reduction-in-force. To determine whether the proposal
constitutes an appropriate arrangement, we must determine whether
the proposal is: (1) intended to be an arrangement for employees
adversely affected by the exercise of a management right; and (2)
appropriate because it does not excessively interfere with the
exercise of management's right. National Association of
Government Employees, Local R14-87 and Kansas Army National
Guard, 21 FLRA 24 (1986).
We find that Sections B and C are intended to be
arrangements for employees adversely affected by management's
decision to transfer a function or conduct a reduction-in-force.
We have noted before that employees may be adversely affected in
a RIF by the loss of their jobs or by demotion. Id. Similarly, a
transfer of function may not only result in employees being
required to move, it can also result in a loss of jobs in the
losing and the gaining competitive area. See, for example,
National Association of Government Employees, Local R14-87 and
Department of the Army, Kansas Army National Guard, Topeka,
Kansas, 21 FLRA 380 (1986). Sections B and C would ameliorate
the impact of those actions by establishing objective criteria
governing retention standing and procedures whereby management
will determine which employees will be layed off or demoted or
reassigned. Where not everyone will be able to be retained, the
use of such criteria assures employees that the decision will not
be arbitrary or discriminatory and that appropriate recognition
will be given to such relevant factors as experience and
performance. See 5 C.F.R. 351.501-506.
Sections B and C would restrict the exercise of management's
rights under section 7106(a)(2)(A). We find, however, that the
burden of that restriction is insubstantial compared to the
benefit afforded employees by Proposal 38.2. Under the proposal,
management would be able to lay off employees to
accomplish the purpose of a reduction-in-force and would retain
the employees who are most experienced in performing the Agency's
work. We find that the detriment to management's interests under
the proposal are minimal compared to the benefit afforded
employees by the protections set forth in Sections B and C.
Consequently, we conclude that those sections do not excessively
interfere with management's rights under section 7106(a)(2)(A)
and are negotiable appropriate arrangements under section
7106(b)(3). See also CREA and Library of Congress, 25 FLRA at
317.
VII. Proposal 38.3
Applicable laws and Regulation - The policy, procedures and
a terminology established in this Article are to be interpreted
in conformance with:
A. 5 U.S.C. Section 3501-3504
B. 5 C.F.R. Part 351
C. FPM Chapter 351
D. 29 C.F.R. Part 351.203
E. 5 C.F.R. Part 351.203
F. 5 U.S.C. Section 7501(2)
as of the date of approval of this Agreement in so doing the
Employer shall insure that its action(s) are done in a fair,
equitable, uniform, and consistent manner and without personal
favoritism or pre-selection.
A. Positions of the Parties
The Agency contends that Proposal 38.3 is an attempt to
limit the authority of Congress and OPM to change the cited
provisions of law and regulation as they apply to unit employees.
The Agency also contends that the proposal is nonnegotiable
because it concerns matters which are specifically provided for
by statute.
The Union states that the proposal gives employees relevant
citations to the statutes and Government-wide regulations related
to RIFs and cites the statutory standards regarding the
conducting of a RIF. The Union notes that Congress may enact a
law which overrides the provisions at any time. The Union also
argues that the proposal does not limit the authority of OPM to
promulgate new regulations. The Union claims that OPM may change
its regulations at any time and the new regulations would become
applicable at the expiration of the parties' agreement,
as provided by section 7116(a)(7) of the Statute. See Union
Response to Agency Statement of Position at 21-22.
B. Discussion
We find that Proposal 38.3 is within the duty to bargain.
There is nothing in this proposal or in the record in this case
which indicates that the proposal would preclude Congress or OPM
from changing the cited provisions of law and regulation. Rather,
the proposal provides that the policy, procedures and terminology
relating to reductions-in-force, as stated in the parties'
agreement, shall be interpreted consistent with applicable
provisions of law and regulation. The proposal provides, further,
that the uniform application of the cited provisions will ensure
that RIFs are conducted in a fair, equitable, uniform and
consistent manner.
Proposal 38.3 requires the Agency to conduct a
reduction-in-force consistent with the applicable provisions of
law and the RIF procedures established by OPM. The proposal would
not require the Agency to comply with provisions which are
eliminated during the tern of the agreement. If the provisions
are modified, the Agency would be required to comply with the
modified provisions only. Further, the proposal does not restate
the terms of the provisions. Therefore, it is not necessary to
determine whether the provisions limit the exercise of
management's rights. General provisions requiring management to
exercise its statutory rights under section 7106 in compliance
with law are within the duty to bargain. American Federation of
Government Employees, Local 32, AFL - CIO and Office of Personne
Management, 26 FLRA 650 (1987). See also American Federation of
Government Employees, AFL - CIO, International Council of U.S.
Marshals Service Locals and Department of Justice, U.S. Marshals
Service, 11 FLRA 672, 677 (1983).
Contrary to the Agency's interpretation of this proposal, we
find that Proposal 38.3 merely requires that the RIF provisions
of the parties' agreement be interpreted in accordance with
applicable law and regulation. Accordingly, we find that Proposal
38.3 is within the duty to bargain.
VIII. Proposal 38.4
The Employer shall establish competitive levels consisting
of all positions in a competitive area and 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 in one position could
successfully perform the critical elements of any other position
without loss of productivity beyond that normally expected in the
orientation of any new and fully qualified employee. In so doing,
NRC shall establish the competitive levels as broadly as possible
to combine as many positions as possible. Competitive levels
shall be established fairly and equitably without favoritism to
employees and not on the basis of sex.
A. Positions of the Parties
The Agency contends that Proposal 38.4 is nonnegotiable
because it paraphrases 5 C.F.R. 351.403(a).
The Union contends that the proposal is a negotiable
procedure under section 7106(b)(2) of the Statute. The Union
argues that the Agency is not bound by the provisions of 5 C.F.R.
351.403 and, therefore, has the discretion to negotiate over this
proposal.
B. Discussion
We find that this proposal is within the duty to bargain.
The fact that this proposal "paraphrases" a provision of OPM
regulations does not render the proposal nonnegotiable. In
American Federation of Government Employees, Local 12, AFL - CIO
and Department of Labor, 17 FLRA 674, 678, remanded as to other
matters sub nom. Local 12, American Federation of Government
Employees, v. FLRA, No. 85-1371 (D.C. Cir. Feb. 11, 1986),
Decision on remand 25 FLRA 979 (1987), the Authority rejected
the argument that the proposal was nonnegotiable because it
concerned a subject matter which is already covered under
governing regulations. The Authority held that the inclusion of
the regulation (5 C.F.R. 351.403) in the proposal, with minor
variations, did not render the proposal inconsistent with the
regulation; therefore, the matter was appropriate for collective
bargaining. Absent a demonstration by the Agency that the
proposal directly interferes with rights guaranteed under the
Statute or is inconsistent with applicable regulations, there is
no basis for finding the proposal nonnegotiable.
Moreover, the Authority has addressed the negotiability of
proposals relating to the definition of competitive levels. A
proposal which would have required all positions in the same or a
related series and at the same grade to be placed in the same
competitive level was found to be nonnegotiable because it: (1)
deprived the agency of its right under section 7106(a)(2)(A) to
determine whether the duties of a position require similar
skills, knowledge, and abilities, and whether an employee in one
position is qualified to perform the duties of the other
position; (2) deprived the agency of its right under section
7106(a)(2)(C) to select for appointment to a position; and (3)
excessively interfered with the agency's rights to assign
employees and make selections for positions. CREA and Library of
Congress, 25 FLRA 306 (Proposal 6). Compare National Treasury
Employees Union and Department of Health and Human Services,
Region X, 25 FLRA 1041, 1043 (1987), in which the Authority
found nonnegotiable a proposal containing a criterion that was
broader than that contained in OPM RIF regulations and was
therefore inconsistent with Government-wide regulations.
Proposal 38.4 restates and therefore is consistent with the
criteria for competitive levels set forth in OPM regulations.
Under Proposal 38.4, the Agency retains the discretion to
determine that the duties of a position require similar skills,
knowledge and abilities and that the employee in one position is
qualified to perform the duties of the other positions. The
proposal further requires that the Agency establish competitive
levels as broadly as possible to combine as many positions as
possible, and to establish competitive levels fairly and
equitably without favoritism to employees and not on the basis of
sex. The Agency does not assert, nor is it apparent from the
record, that the requirements of Proposal 38.4 interfere with the
Agency's rights under the Statute. It is, therefore,
distinguishable from CREA and Library of Congress. We conclude
that the proposal constitutes a procedure which the Agency must
follow when establishing competitive levels for unit employees
and is within the duty to bargain under section 7106(b)(2) of the
Statute.
IX. Proposals 38.7 and 38.10
Proposal 38.7
A. The Employer will give employees at least ninety (90)
days general notice prior to the effective date of a RIF and
forty-five (45) calendar days specific notice.
B. The general notice will state the following
information:
1. The action to be taken and the effective date;
2. the salary retention information;
3. the competitive area;
4. competitive level;
5. group and subgroup;
6. service computation date;
7. annual performance rating of record during
the last three years;
8. information explaining how and where the
employee may examine retention registers
and other records, and that they may be
granted up to eight hours of administrative
leave to review and analyze records
or other information or confer with their
designated representative;
9. reasons for retaining a lower standing
employee in the same competitive level;
10. expiration date of the notice and retention
period;
11. appeal rights and grievance right;
12. reemployment rights;
13. expected severance pay;
14. job series and position in the area for which
they are qualified;
15. any other information required by law, rule
or regulation.
C. An employee is entitled to a new written notice of at least
ninety (90) if the Employer decides to take an action more severe
than first specified.
(Only the underlined portion is in dispute.)
Proposal 38.10
All employees to be release from the competitive levels
shall be provided with specific notice at least forty-five (45)
days before the effective date of the release. Specific notice
will contain the information listed in Section 7(B) above.
A. Positions of the Parties
The Agency contends that section B of Proposal 38.7 is
nonnegotiable because it "parallels the regulations at (5 C.F.R.)
351.803." Agency Statement of Position at 14. The Agency argues
that to the extent that Proposal 38.10 incorporates the
information listed in Section B of Proposal 38.7, it is also
nonnegotiable because it paraphrases 5 C.F.R. 351.803.
The Union contends that Proposal 38.7B and Proposal 38.10
are negotiable procedures within the meaning of section
7106(b)(2). The Union argues that the Agency has discretion to
negotiate over these proposals because the Agency is not bound by
the RIF regulations found in 5 C.F.R. Part 351.
B. Discussion
5 C.F.R. Part 351, Subpart H codifies the procedural
requirements for notice to employees who are affected by a
reduction-in-force. 5 C.F.R. 351.803 specifies the information
which must be included within the general and specific notices to
employees. The Agency asserts that the proposals are
nonnegotiable because they incorporate many of the requirements
of 5 C.F.R. 351.803. The Agency does not assert, however, that
the proposal is inconsistent with the regulation nor does it
assert that the proposal interferes with management's rights.
Since it is not otherwise apparent from the record that
there is a conflict or inconsistency between the proposals and
the regulation and since the Agency has not asserted or
established that the proposals interfere with its rights under
the Statute, there is no basis for finding the proposals
nonnegotiable. The parties bear the burden of creating a factual
record sufficient for the Authority to resolve a negotiability
dispute. National Treasury Employees Union and Department of the
Treasury, Financial Management Service, 29 FLRA 422, 428 (1987)
(Provision 5, Sections 2 and 7) (notice provisions
which merely recognize external limitations set out in 5 C.F.R.
Part 351 and impose no substantive limitations are negotiable).
Since the Agency has failed to establish that Proposal 38.7B
and Proposal 38.10 are inconsistent with law, rule or regulation,
we conclude that the proposals are within the duty to bargain. In
view of this conclusion, it is unnecessary to discuss the Union's
other arguments concerning the Agency's discretion to negotiate
over these proposals.
X. Proposal 38.11
When possible, the Employer shall to the maximum extent
possible, retain the employee on active duty during the notice
period, but it may place him/her on annual leave with or without
his/her consent, on leave without pay with his/her consent, or in
a nonpay status without his/her consent when in an emergency the
Employer lacks work or funds for all or part of the notice
period. If an employee files a grievance within ten (10) workdays
of such action, the action will be stayed pending completion of
the grievance procedure including arbitration.
A. Positions of the Parties
The Agency contends that Proposal 38.11 is nonnegotiable
because it paraphrases the provisions of 5 C.F.R. 351.807. The
Agency also contends that the proposal is nonnegotiable under
section 7117(a)(1) of the Statute because it is inconsistent with
a Government-wide regulation and would subject management's
determinations to arbitral review. The Agency asserts that the
last sentence of this proposal should be found nonnegotiable
because grievances, if used for stay purposes, would prevent the
Agency from implementing a RIF.
The Union contends that Proposal 38.11 concerns a matter
which is within the Agency's discretion and that the proposal is
not excluded from negotiation because of its similarity to OPM
regulations. The Union asserts that the proposal is a negotiable
procedure under section 7106(b)(2).
B. Discussion
We reject the Agency's arguments regarding Proposal 38.11
and conclude that the proposal is within the duty to bargain. As
we previously stated regarding Proposals 38.7B and Proposal
38.10, the inclusion of procedural requirements contained in OPM
regulations within a proposal does not render that proposal
nonnegotiable. The Agency has not established and it is not
otherwise apparent from the record that the proposal conflicts
with applicable provisions of law, rule or regulation.
Further, in NTEU and HHS, Region X, 25 FLRA 1041, Proposal
3 required, absent an emergency such as lack of funds or work,
retention of employees in a duty status during the notice period
for a RIF action. The Authority found that the proposal did not
directly interfere with any management rights and constituted a
negotiable procedural. Id. at 1046. Proposal 38.11, excluding the
last sentence, is similar to section (a) of Proposal 3 in NTEU
and HHS, Region X.
Proposal 38.11 requires the retention of employees on active
duty, to the maximum extent possible, during a RIF notice period
except when, in an emergency, the Agency lacks funds or work for
all or part of the notice period. The Agency has not shown, nor
is it otherwise apparent, that the proposal would prescribe a
substantive criterion which management must apply in exercising
its rights to conduct a RIF. Therefore, consistent with NTEU and
HHS, Region X, we conclude that Proposal 38.11, excluding the
last sentence, does not directly interfere with management's
rights and is procedural within the meaning of section
7106(b)(2). We conclude further that there has been no showing
that this procedure would prevent the Agency from exercising its
rights to conduct a RIF. See id. at 1045-46.
The last sentence of Proposal 38.11 requires a stay of RIF
action pending completion of timely grievances. The last sentence
of Proposal 38.11 is similar to the first sentence of Proposal 2
in Federal Union of Scientists and Engineers, National
Association of Government Employees, Local R1-144, SEIU, AFL -
CIO and U.S. Department of the Navy, Naval Underwater Systems
Center, 25 FLRA 964 (1987), which also required a stay of a
reduction-in-force action pending completion of an appeal to the
MSPB or arbitration. See id. at 966.
The Authority has held to be negotiable a proposal requiring
a stay of RIF action until an employee has exercised the right to
appeal to MSPB and a decision has been rendered. National
Federation of Federal Employees, Local 1900 and Department of
Housing and Urban Development, 15 FLRA 465 (1984). See also
Defense Logistics Council v. FLRA, 810 F.2d 234, 241 (D.C. Cir.
1987); National Treasury Employees Union v. FLRA, 712 F.2d 669
(D.C. Cir. 1983). The Authority concluded that the proposal in
NFFE, Local 1900 and DHUD, 15 FLRA at 466, was negotiable as a
procedure within the meaning of section 7106(b)(2) of the
Statute. We find that the last sentence of Proposal 38.11,
requiring a stay pending the completion of a grievance, is also a
negotiable procedure. See Naval Underwater Systems Center, 25
FLRA at 966.
XI. Proposal 38.12
After a RIF has been directed or approved by higher
authority and until the RIF is consummated or cancelled,
reassignments and competitive promotions within the bargaining
unit will be frozen.
A. Positions of the Parties
The Agency contends that to freeze reassignments and
competitive promotions would excessively limit its ability to
assure that its highly specialized personnel are properly placed
at all times and would, therefore, adversely affect the
accomplishment of its mission. The Agency contends that the
proposal is nonnegotiable because it would excessively interfere
with its right to determine the numbers, types and grades of
employees or positions assigned under section 7106(b)(1) of the
Statute, and also would interfere with its right to determine the
personnel by which agency operations are conducted under section
7106(a)(1).
The Union denies that the proposal would interfere with
management's rights under section 7106 or that it would affect
the mission of the Agency. The Union contends that the proposal
is designed to establish a procedure which management must follow
under section 7106(b)(2) in exercising its right to select
employees.
B. Discussion
For the reasons stated in our separate opinions at pp. 53-54
which immediately follow this decision, we find that Proposal
38.12 is negotiable.
XII. Proposal 38.14
(1) During the period of the general notice, the Employer
will take all reasonable steps to make lateral assignment
placement opportunities to those employees affected by RIF to
other vacant positions within the bargaining unit for which the
employees qualify. (2) In that regard, the employer agrees to
waive non-mandatory qualifications to the maximum extent feasible
to facilitate placement of the affected employees at the same or
lower grade. (3) The Union shall be advised of all determinations
regarding whether a waiver is granted or not.
A. Positions of the Parties
The Agency contends that Proposal 38.14 is nonnegotiable
under section 7117(a)(1) of the Statute. The Agency argues that
the proposal is inconsistent with 5 C.F.R. 351.702 because it
would require the Agency to waive the qualifications for
assignments. The Agency also argues that the portion of the
proposal which requires the Agency to make efforts to waive
certain requirements "to the maximum extent feasible" infringes
on management's rights to assign work under section
7106(a)(2)(B); and that the portion which requires the Agency to
take "all reasonable steps" is nonnegotiable because it would
subject the exercise of management's rights to arbitral review.
The Union contends that Proposal 38.14 constitutes an
appropriate arrangement for employees adversely affected by a RIF
and is negotiable pursuant to section 7106(b)(3) of the Statute.
The Union states that the proposal seeks to minimize the negative
impact of a RIF. The Union asserts that the proposal does not
prevent the Agency from conducting a RIF, but simply requires the
Agency to consider alternatives to employee separations or
demotions.
B. Discussion
The Union argues that Proposal 38.14 is to the same effect
as Proposal 5 in NTEU and HHS, Region X, 25 FLRA at 1047, which
was found to be negotiable as an appropriate arrangement.
Proposal 5 in that case required the agency to make "diligent
efforts" to provide employees with lateral reassignments for
which they qualify to the maximum extent feasible, consistent
with the needs of the agency to carry out its mission. Proposal 5
in NTEU and HHS, Region X also required the agency to
waive nonmandatory qualification requirements for
reassignments.
The Authority found that the requirement in Proposal 5 that
the agency make diligent efforts to make lateral reassignments to
vacant positions limited the agency's discretion to determine
whether to make such reassignments. The Authority determined that
the practical effect of the proposal would be to require
reassignments where they are possible and are not inconsistent
with mission needs. The Authority found that aspect of the
proposal to interfere with the agency's right under section
7106(a)(2)(C) to make selections for appointments. See id. at
1048-49.
The Authority found further that the portion of Proposal 5
in NTEU and HHS, Region X which required the agency to attempt to
waive nonmandatory qualifications to the maximum extent feasible
consistent with its needs to carry out its mission, imposed
substantive limitations on the agency's discretion to decide
whether to waive nonmandatory qualifications by requiring an
actual attempt to do so. The Authority concluded that that
portion of Proposal 5 interfered with the agency's rights under
section 7106(a)(2)(A) to assign employees and section
7106(a)(2)(C) to select employees for appointment. Id. at 1049.
See also National Treasury Employees Union and U.S. Department of
Agriculture, Food and Nutrition Service, Midwest Region, 25 FLRA
1067, 1075-76 (1987), petition for review filed sub nom. National
Treasury Employees Union v. FLRA, No. 87-1166 (D.C. Cir. Apr.
15, 1987) (determination of skills, knowledge, and abilities
needed to perform the work of a position is an integral aspect of
management's right to select employees for appointment).
The first sentence of Proposal 38.14 requires the Agency to
"take all reasonable steps" to make lateral reassignments to
vacant positions. That requirement has the same practical effect
as the requirement in Proposal 5 in NTEU and HHS that the agency
make "diligent efforts" to make such reassignments; that is, it
limits the Agency's discretion to determine whether to make such
assignments by requiring reassignments where they are possible.
Therefore, consistent with NTEU and HHS, we find that the first
sentence of this proposal interferes with the Agency's right
under section 7106(a)(2)(C) to make selections for appointments.
See NTEU and HHS, 25 FLRA at 1048-49.
The second sentence of Proposal 38.14 requires the Agency to
waive nonmandatory qualifications to the maximum extent feasible
to facilitate the placement of affected employees at
the same or a lower grade. The second sentence of this proposal
is to the same effect as the second portion of Proposal 5 in NTEU
and HHS, Region x, which required the agency to attempt to waive
nonmandatory qualifications to the maximum extent feasible. Thus,
consistent with the Authority's decision in NTEU and HHS, Region
X, we conclude that the second sentence of Proposal 38.14
interferes with the Agency's rights under section 7106(a)(2)(A)
to assign employees and section 7106(a)(2)(C) to select employees
for appointment. Id. at 1049.
As to the third sentence of Proposal 38.14, the Agency does
not explain, nor is it otherwise apparent, that the requirement
that the Union be advised of the Agency's decision whether to
grant a waiver interferes in any way with management's rights to
fill vacant positions, determine position qualification
requirements, or conduct a RIF. Accordingly, the Agency's
allegation as to this portion of the proposal cannot be
sustained.
Having found that the first and second sentences of Proposal
38.14 interfere with the Agency's rights to assign and select
employees, we must determine whether that portion of the proposal
is negotiable as an appropriate arrangement under 7106(b)(3).
The Union states that the proposal seeks only to minimize
the negative impact of a RIF on the greatest number of employees
possible. While the proposal requires the Agency to take all
reasonable steps to make lateral reassignments and to waive
nonmandatory qualifications to the maximum extent feasible, the
proposal does not place an absolute requirement on the Agency to
place employees or waive requirements. The proposal would not
preclude the Agency from exercising its discretion to determine
whether or not to place employees in vacancies and waive
nonmandatory qualifications.
Balancing the respective interests of management and
employees, we conclude, after considering the limited impact on
management's rights and the potential benefit of retained
employment through reassignment of employees affected by a RIF,
that the proposal does not excessively interfere with the
Agency's rights under the Statute. See National Federation of
Federal Employees, Local 797 and Department of the Navy, 29 FLRA
333 (1987) (Provision 4). Therefore, we find that the proposal is
an appropriate arrangement within the meaning of section
7106(b)(3) of the Statute and is within the duty to bargain. See
NTEU and HHS, Region X, 25 FLRA at 1050.
XIII. Proposal 38.17
The Employer will not release a competing employee from a
competitive level while retaining in that level an employee
with:
A. A specifically limited temporary appointment;
B. A specifically limited temporary promotion;
C. A performance rating of less than "satisfactory" in an
agency that has not implemented a performance appraisal system
meeting all the requirements of 5 USC Section 4302 and Subpart B,
or 5 C.F.R. Section 430; or
D. A written decision under Section 432.204(a) of removal or
demotion from the competitive level because of "unacceptable
performance," as defined in 5 C.F.R. Section 432.202.
A. Positions of the Parties
The Agency contends that Sections A, B, and D of Proposal
38.17 are nonnegotiable because they paraphrase 5 C.F.R. 351.602.
The Agency contends that Section C of the proposal is
nonnegotiable under section 7117(a)(1) of the Statute because it
is inconsistent with Government-wide regulations.
The Union states that the proposal provides information to
employees regarding release and retention rights. The Union
argues that this proposal is negotiable under section 7106(b)(2)
since the Agency is not bound by 5 C.F.R. 351.602. The Union also
argues that Proposal 38.17 constitutes an appropriate
arrangement.
B. Discussion
We find, for the reasons which follow, that Proposal 38.17
is within the duty to bargain.
Sections A, B, and D
Sections A, B, and D of Proposal 38.17 restate the
prohibitions listed in 5 C.F.R. 351.602 concerning the release of
employees from a competitive level. As we stated
previously, the fact that the proposal paraphrases OPM
regulations is not a basis for finding the proposal
nonnegotiable. The Agency must demonstrate that the proposal is
inconsistent with the regulation as well. The Agency has not
shown, nor does it allege, that the proposal is inconsistent with
5 C.F.R. 351.602. Therefore, we do not find that the proposal is
excluded from bargaining on that basis.
We do find, however, that sections A, B, and D of this
proposal would restrict the exercise of management's rights. The
cited sections would prevent the Agency from releasing competing
employees from a competitive level while retaining an employee
with: (1) a limited temporary appointment; (2) a limited
temporary promotion; or (3) a written decision of removal or
demotion based on unacceptable performance. Proposal 38.17
directly interferes with the Agency's right under section
7106(a)(2)(A) to lay off employees by requiring the release of
specified types of employees prior to taking RIF actions against
other competing employees.
This conclusion is consistent with other cases in which the
Authority has found proposals to interfere with management's
right to lay off employees under section 7106(a)(2)(A). See Naval
Underwater Systems Center, 25 FLRA 964 (Proposal 3) (proposal
interfered with agency's right to lay off because it required
termination of specified types of employees prior to taking RIF
actions against full-time unit members); International Plate
Printers, Die Stampers and Engravers Union of North America, AFL
- CIO, Local 2 and Department of the Treasury, Bureau of
Engraving and Printing, Washington, D.C., 25 FLRA 113 (1987)
(Provisions 30 and 31) (provisions interfered with right to lay
off because they required the agency to lay off employees in
trainee positions prior to taking such action against journeyman
plate printers).
The limitations specified in Proposal 38.17, Sections A, B,
and D are those provided by OPM regulations. See 5 C.F.R.
351.602. However, should the regulations be revised, the
limitations would remain as contractual restrictions on the
Agency's ability to lay off and retain employees. Therefore,
Sections A, B, and D directly interfere with management's right
to lay off employees.
The Union argues that Proposal 38.17 is an "appropriate
arrangement" for employees adversely affected by a RIF. We find
that the proposal is intended as an arrangement for employees
adversely affected by the exercise of management's right to lay
off pursuant to a RIF. It is designed to protect employees from
the adverse impact associated with the release from a competitive
level. To determine whether the proposed arrangement is
appropriate, we must weigh the parties' respective interests and
decide whether the adverse impact on management's right is
excessive as compared to the benefits to adversely affected
employees.
Release from a competitive level may result in a loss of
employment or demotion for unit employees. This significant
adverse effect results from circumstances beyond the employees'
control and is not based on the employees' performance. The
proposal provides protections for employees who have permanent
status in positions and for employees who are performing
satisfactorily. Under the proposal, those employees are retained
over employees with temporary status and employees who have
received a written decision from the Agency removing or demoting
them for unsatisfactory performance. In our view, management has
little interest in retaining employees it has determined to be
unsatisfactory over satisfactory employees. Thus, precluding the
retention of unsatisfactory employees over satisfactory employees
does not excessively interfere with management's rights.
As to the retention of employees in temporary appointments
over employees with permanent appointments, the Agency has not
asserted a management interest which warrants the retention of
temporary employees over equally qualified permanent employees.
Because of the very nature of a limited temporary appointment,
management has no expectation of and little interest in retaining
temporary employees on a long-term basis over equally qualified
employees already assigned to the same positions on a permanent
basis. Whatever interest management might have it is not
sufficient to overcome the benefit to permanent appointees in
retaining their positions. We find that Proposal 38.17, Sections
A, B, and D do not excessively interfere with management's rights
and, therefore, is an appropriate arrangement under section
7106(b)(3) of the Statute. See, for example, CREA and Library of
Congress, 25 FLRA at 317.
Section C
Subchapter 3-9(f)(1) of chapter 351 of the FPM provides that
"(a) competing employee with a current annual performance rating
of record of unacceptable . . . who has not received a
final written decision of removal or demotion due to unacceptable
performance . . . is listed on the retention register, not apart
from it." See FPM Letter 351-22 (Sept. 17, 1987). Therefore,
under current OPM regulations, the Agency must give employees
covered by Section C of Proposal 38.17 the retention standing to
which they are entitled under 5 C.F.R. 351.501-505, without
regard to whether they have received a performance rating of less
than "satisfactory." This provision is therefore distinguishable
from Section D of Proposal 38.17 which applies to employees who
have received a written decision removing or denoting them for
unsatisfactory performance. See 5 C.F.R. 351.602.
Section C of Proposal 38.17 prevents the release of an
employee from a competitive level while the Agency retains an
employee with a performance rating of less than satisfactory, if
the Agency has not implemented a performance appraisal system
which meets the requirements of 5 U.S.C. 4302 and Subpart B of 5
C.F.R 432.202. Under Section C, the Agency would be required to
release an employee whose performance had been appraised as less
then satisfactory, but who had not been the subject of a written
decision taking action against them for unacceptable performance,
while retaining an employee with lower retention standing.
Subchapter 3-9(f)(1) of chapter 351, however, would require that
employees who have been rated less than satisfactory, but not
subject to a written decision, to be released according to their
retention standing without regard to that appraisal. Section C,
therefore, is inconsistent with FPM Chapter 351, subchapter
3-9(f)(1) because it denies specified employees the retention
rights to which they are entitled.
OPM regulations governing RIF actions are binding on
agencies with respect to RIF actions to which they apply and are
Government-wide regulations which bar negotiation of conflicting
proposals. International Brotherhood of Electrical Workers, AFL -
CIO, Local Union 1245 and Department of the Interior, Bureau of
Reclamation, 25 FLRA 201 (1987) (Proposal 1). Consequently, we
conclude that Section C of Proposal 38.17 is outside the duty to
bargain under section 7117(a)(1) of the Statute because it is
inconsistent with a Government-wide regulation.
XIV. Proposal 38.18
A. The Employer shall select competing employees for release
from a competitive level under a RIF in the inverse order of
retention standing, beginning with the employee with
the lowest retention standing on the retention register, i.e.,
all employees in Group III are released before any in Group II,
and all employees in Group II are released before any in Group I.
Within each Group, all employees in subgroup B are released
before any subgroup A, and all employees in subgroup A are
released before any in subgroup AD.
B. When the agency retains an employee for more than 30
days after the effective date of release of a higher-standing
employee from the same competitive level on either a continuing
or temporary basis, it shall notify in writing each
higher-standing employee reached for release of the reasons for
the exemption and the date the lower-standing employee's
retention will end. When the agency retains a lower-standing
employee, it shall list opposite the employee's name on the
retention register the reasons for the exception and the date
this employee's retention will end.
C. Those affected employees with a higher retention shall be
afforded an opportunity to reply both orally and in writing as to
their ability to perform the duties of the lower standing
employee.
A. Positions of the Parties
The Agency contends that Proposal 38.18 is nonnegotiable
under section 7117(a)(1) of the Statute because it paraphrases
the regulations at 5 C.F.R. 351.601(a) and 5 C.F.R. 351.608(b).
The Agency argues that by paraphrasing the regulations, the
proposal is inconsistent with Government-wide regulations.
The Union states that Proposal 38.18 is intended to provide
employees with additional information regarding release and
retention rights. The Union argues that the proposal is an
appropriate arrangement under section 7106(b)(3) of the
Statute.
B. Discussion
The Agency has not established that Proposal 38.18 is
inconsistent with Government-wide regulations or violates
management's rights. Therefore, we find that the proposal is
negotiable.
Section A of Proposal 38.18 addresses the order of release
of employees from a competitive level under a RIF. It requires
that the release of employees be in the inverse order of
retention standing. This requirement is consistent with 5 C.F.R.
351.601. We find, however, that Section A directly interferes
with management's right under section 7106(a)(2)(A) to lay off
employees because it requires the Agency to lay off employees in
a particular manner by determining the order in which employees
will be retained. See CREA and Library of Congress, 25 FLRA at
315 (Proposals 3-5), where the Authority found that proposals
establishing the criteria for determining the order by which
employees would be retained directly interfered with management's
right under section 7106(a)(2)(A) to lay off employees.
Therefore, we find that Section A of Proposal 38.18 directly
interferes with the Agency's right to lay off employees.
Section A is, therefore, outside the duty to bargain unless
it constitutes an appropriate arrangement within the meaning of
section 7106(b)(3) of the Statute. See discussion at VI.B.2.
above. See also Kansas Army National Guard, 21 FLRA 24.
We find that the intent of Section A is to ameliorate the
adverse effects of a RIF. A RIF has a significant impact on
employees and results from circumstances outside the employee's
control. See Kansas Army National Guard.
Section A would provide employees with objective
criteria--based on seniority and the type of appointment--to
govern the determination of who will be released from a
competitive level in a reduction-in-force. These same criteria
are contained in 5 C.F.R. 351.601. We conclude, on balance, that
the burden on management's right to determine which employees to
lay off is outweighed by the benefit to employees of providing
then with the protection of objective criteria governing their
layoff during the term of the agreement.
Under Section A, the criteria to be used by the Agency
include seniority as well as performance. These criteria would
allow the Agency to retain experienced and productive employees.
Consequently, we conclude that Section A of Proposal 38.18 does
not excessively interfere with the Agency's right under section
7106(a)(2)(A) to lay off employees and, therefore, is an
appropriate arrangement under section 7106(b)(3) of the Statute.
Section B requires the Agency to notify employees released
from a competitive level when it decides to retain an employee
with a lower retention standing than the released employees for
more than 30 days. Section B also requires that the Agency
specify in the notice: (1) the reasons for retaining the employee
with the lower standing; (2) the applicable exemptions; and (3)
the date on which the lower standing employee's retention will
end.
The Authority has held that proposals requiring notice to
employees in RIF situations are negotiable procedures. See
Internal Revenue Service, Cincinnati District Office and National
Treasury Employees Union, Chapter 9, 24 FLRA 288, 291 (1986);
National Federation of Federal Employees, Local 108 and U.S.
Department of Agriculture, Farmers Home Administration, 16 FLRA
807 (1984). The requirement in Section B that the Agency notify
employees who have been released from a competitive level in a
RIF that it is retaining an employee with a lower retention
standing does not interfere with the Agency's right to retain or
release certain employees. Section B merely requires the Agency
to notify employees when it takes certain actions. Section B of
Proposal 38.18 is within the duty to bargain under section
7106(b)(2). See also, Illinois Nurses Association and Veterans
Administration Medical Center, Hines, Illinois, 28 FLRA 212, 217
(1987), petition for review filed sub nom. Veterans
Administration Medical Center, Hines, Illinois v. FLRA, No.
87-1514 (D.C. Cir. Sept. 23, 1987) (proposals requiring the
agency to give employees notice of job elements are negotiable
procedures).
Section C allows employees with a higher retention standing
who have been released by the Agency to reply to the Agency's
notice (as required in section B) regarding their ability to
perform the duties of the lower standing employee who has been
retained in employment. Section C of Proposal 38.18 is a
procedure which allows employees to submit statements to the
Agency concerning their ability to perform the duties of an
employee with a lower retention standing who has been retained by
the Agency. Section C does not require action by the Agency based
on the employees' statements. The Agency has not shown how the
procedure in Section C interferes with its rights under the
Statute. Additionally, the Agency has not demonstrated that the
procedure is inconsistent with Government-wide regulations. See
VA Medical Center, Hines, Illinois, 28 FLRA at 220-21 (proposal
allowing employees to submit memoranda questioning the
application of the proficiency and advancement process is a
negotiable procedure). We conclude that Section C of Proposal
38.18 is a negotiable procedure under section 7106(b)(2) of the
Statute.
In sum, we find that Section A of Proposal 38.18 is a
negotiable appropriate arrangement under section 7106(b)(3) and
that Sections B and C are negotiable procedures under section
7106(b)(2) of the Statute.
XV. Proposals 38.20 and 38.21
Proposal 38.20
A. When the Employer abolishes all positions in a
competitive area within 3 months, it shall release employees in
subgroup order. Within a subgroup, release shall solely be based
upon length of federal service. Ties shall be broken as provided
for in Section 19.
B. For all actions under this Article bump and retreat
rights shall be provided for employees in each group and subgroup
including group III.
C. Where an employee retreats or is bumped to a lower graded
position and his/her position becomes vacant, the employee upon
request shall be repromoted to his/her position.
Proposal 38.21
A. An employee is entitled to an offer of a position
commensurate with his/her assignment rights as stated in FPM
Chapter 351. An employee is entitled to no further offer of
assignment when:
1. he/she accepts or rejects an offer, or
2. he/she fails to reply to an offer within the stated time
limit.
B. Upon receiving a specific RIF notice containing the best
available offer of an assignment, the employee will be given 15
working days to accept or decline the assignment offer.
C. In rejecting an offer, an employee may indicate second
and third choices of alternate position for which he/she is
otherwise qualified.
D. The Employer agrees to waive qualification standards in
determining placement opportunities as provided for in applicable
laws and regulations to maximum extent feasible and in fair and
equitable manner.
E. When an employee has been involuntarily reassigned to a
position of equal grade without personal cause in a RIF, he/she
will be selected to fill his/her prior position which becomes
vacant again. If there is more than one employee eligible for the
position, selection shall be made according to the employee with
the largest federal service.
F. 1. The sex of an employee may not be - considered in
determining whether an employee is qualified for a position.
2. An employee who is released from a competitive level
during a leave of absence because of a compensable injury may not
be denied an assignment right solely because the employee is not
physically qualified for the duties of the position if the
physical disqualification resulted from the compensable injury.
G. No employee who is other than full-time may be
involuntarily assigned to a full-time or vice-versa.
A. Positions of the Parties
The Agency contends that the proposals would provide
excepted service employees with the assignment rights of
competitive service employees in 5 C.F.R. Part 351. The
Agency contends that although it has the discretion to provide
these assignment rights to excepted service employees, under 5
C.F.R. 351.705(a)(3), it cannot be compelled to negotiate over
those rights. Further, the Agency contends that if it should
provide those rights to excepted service employees, it would be
required under 5 C.F.R. 351.705(b)(2) to apply those rights
"uniformly and consistently." The Agency maintains that it would,
thereby, be required to provide those rights to nonunit as well
as unit employees. As a result, the Agency contends that
Proposals 38.20 and 38.21 would have a direct and significant
effect on nonbargaining unit employees.
The Union asserts that the intent of the proposals is to
establish assignment rights consistent with 5 C.F.R. 351.701 et
seq. for bargaining unit employees. The Union contends that the
Agency has the discretion to establish those rights and that it
must negotiate over its exercise of that discretion. The Union
denies that the Agency would be forced to apply the assignment
rights to nonbargaining unit employees. The Union cites CREA and
Library of Congress, 25 FLRA 306 in support of its view that
"bumping and retreat" rights could be negotiated as an
appropriate arrangement for affected employees under section
7106(b)(3) of the Statute. Finally, the Union contends that even
if the reassignment rights were applied to nonunit as well as
unit employees, the proposals would not excessively interfere
with the rights of nonunit employees.
B. Discussion
Proposals 38.20 and 38.21 establish "bumping" and "retreat"
rights for unit employees who, as noted above, are excepted
service employees. The proposals have the same effect as the
proposal in Merit Systems Protection Board Professional
Association and Merit Systems Protection Board, 31 FLRA No. 26
(1988). In that case, we decided that a proposal establishing
"bumping" and "retreat" rights for excepted service employees:
(1) was not determinative of the conditions of employment of
nonunit employees; (2) was not inconsistent with Government-wide
regulations, including 5 C.F.R. 351.705(b)(2); (3) directly
interfered with management's right to assign employees under
section 7106(a)(2)(A) because it interfered with management's
determination as to which employees will be reassigned and
retained; and (4) was an appropriate arrangement under section
7106(b)(3) of the Statute.
Consistent with our decision in Merit Systems Protection
Board, we find that Proposals 38.20 and 38.21 are negotiable
appropriate arrangements for the exercise of the Agency's right
to conduct a reduction-in-force. Nothing in the record
demonstrates that the proposal would apply to nonunit employees
or determine their conditions of employment. Union Response to
Agency Statement of Position at 30. Further, we find that the
proposals are not inconsistent with Government-wide regulations.
The proposals provide the same protections offered competitive
service employees in 5 C.F.R. Part 351. Moreover, the Union
indicates that the proposals are intended to be applied
consistent with 5 C.F.R. Part 351. Union Response to Agency
Statement of Position at 30. Proposals 38.20 and 38.21 do,
however, interfere with management's right to assign since they
establish a method by which excepted service bargaining unit
employees with greater retention preference could displace
employees with less retention preference and requires the Agency
to reassign and retain employees in accordance with Proposals
38.20 and 38.21. See Merit Systems Protection Board, slip op. at
5-7.
These proposals are intended as arrangements for employees
who would otherwise be separated from their positions because of
a RIF. In Merit Systems Protection Board we considered whether a
proposal which sought to establish second round assignment
rights, including "bumping and retreat" rights, for excepted
service employees was an appropriate arrangement within the
meaning of section 7106(b)(3) of the Statute. We found that since
the proposal provided that "bumping and retreat" rights are to be
applied to excepted service employees as provided at 5 C.F.R.,
Part 351, subpart G, the proposal would have no effect on the
competitive area established by the Agency for RIF purposes. We
also found that since 5 C.F.R. Part 351, subpart G "bumping and
retreat" rights are limited to employees who are qualified for
the position they seek, there was no question concerning whether
the employees possess the requisite qualifications. We concluded
that compared with the significant adverse impact of a RIF on
affected employees, the proposal did not excessively interfere
with management's rights and was an appropriate arrangement. Id.,
slip op. at 6-7.
Consistent with our decision in Merit Systems Protection
Board, we conclude that Proposals 38.20 and 38.21 are also
appropriate arrangements. The proposals merely seek to apply the
assignment rights for competitive service employees
found in 5 C.F.R. Part 351 to unit employees. See Union Response
to Agency Statement of Position at 30 and Agency Statement of
Position at 20. The proposals would preserve management's
discretion regarding the establishment of competitive areas and
the assessment of employees' qualifications to the same extent as
the proposal in Merit Systems Protection Board. Since the Agency
has not identified any section of the proposals which would
interfere with its rights to an excessive degree, we conclude
that these proposals are appropriate arrangements and are
negotiable under section 7106(b)(3) of the Statute.
XVI. Proposal 38.26
A. Relocation of employees, occurring as a result of any
action under the RIF, will be deemed in the best interest of the
Government and such employees will be provided with relocation
time, reimbursement, and all other benefits provided by law, rule
or regulation and/or which are within the discretion of the
Employer.
B. House Hunting Trips - When the employer assigns an
employee requiring a move to another geographic area, the
employee will be granted administrative leave and/or excused
absence, as appropriate to locate housing and make related
arrangements at the new work location. Providing all applicable
regulations are satisfied, the employee shall be placed in a
travel status for such trips and shall receive travel and per
diem reimbursement.
C. Time allowed for relocation - Employees reassigned to a
different commuting area who relocate will be allowed up to 90
calendar days as necessary, to complete the move and report to
work at the gaining activity. If the gaining activity is within
the bargaining unit, the employee may be allowed additional time
where circumstances relating to the move beyond the control of
the employee require time off from work.
D. The employer will arrange for counselling for such
matters as area housing, schools, and services for employees who
are reassigned as a result of the RIF. Employees will be given
official time to attend such counselling.
A. Positions of the Parties
The Agency contends that the relocation of Government
employees is governed by General Services Administration (GSA)
Regulations, 41 C.F.R. 101-7, which incorporate by reference the
Federal Travel Regulations (FTRs) set forth in GSA Bulletin
Federal Property Management Regulation A-40. The Agency contends
that Proposal 38.26 is nonnegotiable because the proposal
paraphrases Government-wide regulations and precludes compliance
with any future changes by GSA. The Agency also claims that the
proposal is inconsistent with the FTRs because the FTRs do not
provide for: (1) agency discretion to provide the benefits
proposed in subsection A; (2) "administrative leave and/or
excused absence" as proposed in subsection B; (3) "90 calendar
days" for relocation as proposed in subsection C; and (4)
"counselling" services as proposed in subsection D. The Agency
maintains that all of the subsections under Proposal 38.26 are
inconsistent with Government-wide regulations and therefore
nonnegotiable.
The Union asserts that this proposal is within the Agency's
discretion to act, or in the alternative, constitutes an
appropriate arrangement for employees adversely affected by a
RIF.
B. Discussion
We do not agree with the Agency's contention that
negotiation of Proposal 38.26 is outside the duty to bargain
because it paraphrases or restates provisions of the FTRs. As
noted previously, a proposal which restates the terms of a
Government-wide regulation is nonnegotiable only if it is
inconsistent with that regulation or if it would constitute a
substantive limitation on a management right. The Agency has not
shown that negotiation over the matters addressed in Sections A
and B of Proposal 38.26, would be inconsistent with the FTRs or
interfere with its rights under section 7106 of the Statute.
Section A would allow what is already permitted by 5 U.S.C.
5724a.(c) and by Chapter 2-1.5(d) of the FTR--a determination
that relocation of employees because of a reduction-in-force is
in the best interest of the Government. Section B would allow
affected employees to make house-hunting trips, as
provided by 5 U.S.C. 5724a.(a)(2). Both Sections A and B would
allow the benefits in accordance with applicable regulations. See
National Treasury Employees Union and Department of the Treasury,
U.S. Customs Service, 21 FLRA 6 (1986), enforced sub nom.
Department of the Treasury, U.S. Customs Service v. FLRA, No.
86-1198 (D.C. Cir. Jan. 19, 1988). Sections A and B do not
interfere with management rights and have not been shown to be
contrary to law or regulation.
As to the remaining two sections of Proposal 38.26, we find
that although they would interfere with the exercise of
management's rights, they are negotiable as appropriate
arrangements for adversely affected employees under section
7106(b)(3) of the Statute. Section C would allow the granting of
time up to 90 days or more for affected employees to complete a
move and report to a new location. Management has the right to
assign work under section 7106(a)(2)(B) of the Statute. That
right includes the right to determine when assigned work will be
performed. Section C of Proposal 38.26 interferes with
management's right to assign work because it would require the
Agency to allow relocated employees 90 days or longer in which to
complete their moves regardless of the requirement that the work
of the new assignment be performed earlier. See American
Federation of Government Employees, AFL - CIO, Local 1738 and
Veterans Administration Medical Center, Salisbury, North
Carolina, 27 FLRA 52, 59, (1987), in which Proposal 7, requiring
an employee selected for reassignment to assume the duties of the
new position within 2 weeks, was found nonnegotiable as violating
management's right to assign work; National Treasury Employees
Union and Department of the Treasury, Bureau of the Public Debt,
3 FLRA 769, 775 (1980), affirmed sub nom. NTEU v. FLRA, 691
F.2d 553 (D.C. Cir. 1982).
We find that Section C is an arrangement for employees
adversely affected by management's exercise of its right to
assign work. This section is intended, as stated by the Union, to
provide an arrangement for employees adversely affected by a
reduction-in-force by allowing them time in which to prepare for
and complete a move to the new work location. The question
remains whether that arrangement is appropriate because it would
not excessively interfere with the exercise of management's
rights under section 7106(a) of the Statute. See Kansas Army
National Guard, 21 FLRA 24.
We find that Section C would not excessively interfere with
the right to assign work and to have that work performed at the
times required by management. In the event Section C were
implemented, a reduction-in-force and subsequent
realignment of the work force already would have disrupted the
normal work patterns of the Agency and created delays in work
performance. We find that the proposal to allow employees time up
to 90 days as necessary to relocate their homes after a RIF would
not add significantly to that disruption. Therefore, Section C is
within the duty to bargain as an appropriate arrangement under
section 7106(b)(3) of the Statute. Section D would require the
Agency to arrange for counseling for employees adversely affected
by a reduction-in-force and to allow official time for those
employees to attend the counseling sessions. The Authority has
held that a proposal which would require management to provide
counseling to employees would be a negotiable procedure as long
as it would not require a particular management official to
perform that duty. American Federation of Government Employees,
AFL - CIO, Local 1858 and U.S. Army Missile Command, The U.S.
Army Test, Measurement, and Diagnostic Equipment Support Group,
The U.S. Army Information Systems Command - Redstone Arsenal
Commissary, 27 FLRA 69 (1987) (Provision 8).
Section D of Proposal 38.26 is stated in terms of "official
time," a phrase employed in the Statute to mean absence from duty
without charge to leave or loss of pay for employees performing
union representational activities. it is clear from the context
and from Union statements in the record that the proposal
concerns "administrative leave," which is a term used to refer
generally to absence from duty administratively authorized
without charge to leave or loss of pay. The Authority adopts this
interpretation for purposes of this decision. Under the Statute,
an agency must negotiate with an exclusive representative on
matters concerning conditions of employment of unit employees
within its discretion to the extent consistent with law and
regulation. The Authority has consistently construed those
portions of the FPM concerned with "administrative leave" as
providing that the head of an agency has discretion to grant
administrative leave to employees of the agency in certain
situations for brief periods of time. See National Federation of
Federal Employees and U.S. Department of the Interior, U.S.
Geological Survey, Eastern Mapping Agency, 21 FLRA 1105, 1114
(1986). Consistent with Eastern Mapping Agency, we find that this
aspect of the proposal is within the duty to bargain.
There is nothing in the FTRs which prohibits the counseling
of employees and Section D is not inconsistent with those
regulations. Moreover, Section D does not specify who will do the
counseling. Arrangements for providing counseling are left to
management's discretion. We conclude, therefore, that Section D
does not interfere with management's rights and is within the
Agency's duty to bargain under section 7106(b)(2) of the Statute.
See International Plate Printers, Die Stampers and Engravers
Union of North America, AFL - CIO, Local 2 and Department of the
Treasury, Bureau of Engraving and Printing, Washington, D.C., 25
FLRA 113 (1987) (Provision 32), in which the Authority found a
requirement that the agency provide training necessary to perform
the duties to which employees were reassigned after a
reduction-in-force was an appropriate arrangement for those
employees.
We conclude that Sections A, B, C, and D of Proposal 38.26
are within the duty to bargain.
XVII. Proposal 38.27
When a determination is made consistent with the provisions
of the Back Pay Act or the implementing regulations that an
action taken under a RIF was unjustified or unwarranted the
Employer will take remedial action as soon as possible. Where
appropriate, the restoration of an employee to his/her former
grade or rate of pay or to an intermediate grade or rate of pay,
shall be retroactive to the date of the improper action.
A. Positions of the Parties
The Agency contends that Proposal 38.27 is nonnegotiable
because it paraphrases the provisions of 5 C.F.R. 351.902. The
Agency also contends that the portion of the proposal stating
"consistent with the provisions with the Back Pay Act," is
nonnegotiable under section 7103(a)(14)(C) of the Statute because
it concerns a matter which is specifically provided for by
Federal statute.
The Union contends that the reference to the Back Pay Act
constitutes a negotiable procedure and appropriate arrangement
for employees who are restored to duty after correction of an
unjustified and unwarranted reduction-in-force action.
B. Discussion
We find that proposal 38.27 is a negotiable procedure. The
Agency's excepted service employees are covered by the Back Pay
Act, 5 U.S.C. 5596, because they are employees of an Executive
agency under 5 U.S.C. 105. See 5 U.S.C. 5596(a)(1) and (b)(1).
The Agency's excepted service employees are also covered by the
RIF regulations contained in 5 C.F.R. Part 351, with certain
exceptions.
As relevant to Proposal 38.27, 5 C.F.R. 351.902 provides as
follows:
When an agency decides that an action under this part was
unjustified or unwarranted and restores an individual to the
former grade or rate of pay held or to an intermediate grade or
rate of pay, it shall make tbe restoration retroactively
effective to the date of the improper action.
Proposal 38.27 in this case does not require the Agency to
do more than it is required to do under the Back Pay Act and
under 5 C.F.R. 351.902. The proposal states the requirements of
the Back Pay Act and 5 C.F.R. 351.902, but the Agency has not
demonstrated that the proposal is inconsistent with the
provisions of that law and that regulation. Nor has the Agency
shown that providing corrective remedial action consistent with
those provisions would restrict the exercise of its rights. The
fact that the proposal incorporates those provisions does not
make it nonnegotiable.
Moreover, the matter addressed by the proposal is not
removed from conditions of employment under section
7103(a)(14)(C) because it is covered by Federal statute. Rather,
the proposal requires the Agency only to apply any corrective
actions which are to be applied in redress of an unjustified or
unwarranted reduction-in-force action in accordance with the
terms of the Back Pay Act and 5 C.F.R. 351.902. The proposal
constitutes a procedure for taking corrective action under
section 7106(b)(2) of the Statute. Consequently, Proposal 38.27
is within the Agency's duty to bargain.
XVIII. Proposal 38.32
No RIF will be implemented until any reorganization
resulting from the RIF is finally determined, including
completion of any necessary negotiation with the Union.
A. Positions of the Parties
The Agency contends that the proposal is nonnegotiable
because it violates management's right under section
7106(a)(2)(A) to conduct a RIF by placing a condition on that
right.
The Union states that it seeks the right to negotiate on any
reorganization which results from a RIF prior to the
implementation of the action. The Union contends that its
proposal is a negotiable procedure under section 7106(b)(2). The
Union argues that the proposal would only require a stay of the
reduction-in-force until any reorganization and related
negotiations are completed. The Union states that the intent of
its proposal is to avoid the needless separation of employees if
the reorganization should open new positions in which employees
could be placed.
B. Discussion
We find that Proposal 38.32 is outside the duty to bargain
because it would impose substantive restrictions on the exercise
of management's rights under section 7106(a) of the Statute.
According to the Union, the proposal is intended to be a
procedure which requires the Agency to complete any
reorganization which would result from a reduction-in-force,
including negotiations on that reorganization, prior to
implementing the RIF. In our view, the proposal would prevent
management from conducting a RIF until it had finally determined
the organizational structure which would exist after the RIF,
even where negotiations had been completed. The proposal
conditions the exercise of management's right to lay off
employees under section 7106(a)(2)(A) on its right under section
7106(a)(1) to determine its organization. See NTEU and HHS,
Region X, 25 FLRA at 1051-52 (Proposal 6).
By requiring the Agency to determine the final shape of its
post - RIF organizational structure, the proposal prescribes the
manner in which management will exercise its right to determine
its organization. The proposal would preclude the implementation
of any organizational plan which was not the Agency's final
determination of that structure. The proposal thereby establishes
a substantive criterion governing the exercise of management's
right to determine its organization and directly interferes with
management's right under section 7106(a)(1) of the
Statute. Moreover, the proposal establishes the requirement of a
final determination of organizational structure as a precondition
on the implementation of a RIF. Contrary to the Union's position,
we do not view that precondition as a procedure. It is a
substantive restriction on management's right under section
7106(a)(2)(A) to lay off employees. The proposal therefore
directly interferes with management's right under section
7106(a)(2)(A) of the Statute.
This case is distinguishable from cases in which the
proposals at issue condition an agency's action on the
fulfillment of its statutory duty to bargain. See, for example,
Overseas Education Association, Inc. and Department of Defense
Dependents Schools, 29 FLRA 734, 740-41 (1987) (Proposal 3),
petition for review filed sub non. Department of Defense
Dependents Schools v. FLRA, No. 87-1735 (D.C. Cir. Nov. 30,
1987). In this case, the terms of the proposal and the Union's
explanation of its intent indicate that the condition on which
implementation of the RIF would turn is not the completion of
management's statutory obligation to bargain, but the final
determination of its organizational structure.
We conclude that Proposal 38.32 directly interferes with
management's rights to determine its organization under section
7106(a)(1) and to lay off employees under section 7106(a)(2)(A)
of the Statute and is outside the duty to bargain. We note that
the Union did not claim that this proposal is an appropriate
arrangement within the meaning of section 7106(b)(3) and thus we
do not reach that issue.
XIX. Order
The petition for review as to Proposal 27.13.1.1, Section E
of Proposal 38.2, Section C of Proposal 38.17, and Proposal 38.32
is dismissed. The Agency shall, upon request or as otherwise
agreed to by the parties, bargain on the remaining proposals or
sections addressed in this decision. 1
Issued, Washington, D.C., February 23, 1988
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
OPINION OF CHAIRMAN CALHOUN
Proposal 38.12 would apply only to reassignments and
competitive promotions within the bargaining unit and is intended
as an arrangement for employees adversely affected by the
exercise of the Agency's right to lay off employees. It is to the
same effect as Proposal 4 in National Treasury Employees Union
and Department of Health and Human Services, Region X, 25 FLRA
1041 (1987). That proposal would have restricted reassignments
and competitive promotions within the bargaining unit to those
considered necessary for the functioning of the organization. I
stated that, in my opinion, this restriction would directly
interfere with management's right, under section 7106(a)(2)(C) of
the Statute, to fill positions by making selections from among
properly ranked and certified candidates for promotion and any
other appropriate source. However, I concurred in my colleagues'
finding that the proposal, which applied only to positions filled
through reassignments and promotions within the bargaining unit,
was negotiable. I stated that the proposal placed an
insubstantial burden on management when compared to the potential
benefit on affected employees and constituted an appropriate
arrangement under section 7106(b)(3). Consistent with my opinion
in that decision, I find that Proposal 38.12 is an appropriate
arrangement under section 7106(b)(3) of the Statute.
Issued, Washington, D.C., February 23, 1988
Jerry L. Calhoun, Chairman
Opinion of Member McKee
I agree with Chairman Calhoun that Proposal 38.12 is to
similar effect as Proposal 4 in NTEU and HHS, Region X, 25 FLRA
1041. I also agree that the proposal would not conflict with
management's rights under section 7106(a) because it does not
preclude the filling of vacancies by selection outside the
Agency. Thus, it would not affect the essential functioning of
the Agency. However, for the same reasons as set forth in the
majority opinion on Proposal 4 in NTEU and HHS, Region X, I
conclude that Proposal 38.12 in this case establishes a procedure
which management would follow in filling vacancies by
reassignment or competitive promotion and is therefore negotiable
under section 7106(b)(2) of the Statute.
Issued, Washington. D.C., February 23, 1988
Jean McKee, Member
FOOTNOTES
Footnote 1 In finding these proposals to be within the duty
to bargain, we make no judgment as to their merits.