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47 FLRA No. 35

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL COUNCIL OF SOCIAL SECURITY

PAYMENT CENTER LOCALS

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

(Agency)

0-NG-2093

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DECISION AND ORDER ON A NEGOTIABILITY ISSUE

April 16, 1993

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Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7106(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns a single, multi-section proposal regarding the eligibility of certain employees for Discontinued Service Retirement (DSR). For the following reasons, we reject the Agency's claim that the proposal is inconsistent with Government-wide regulations and interferes with management's rights to assign and retain employees and assign work under Section 7106(a)(2)(A) and (B) of the Statute, and find that it is negotiable.

II. The Proposal

D. In accordance with FPM Supplement 830-1 the agency will request a discontinued service retirement [DSR] determination from OPM for the Recovery Reviewer position. The agency will provide the union with all communications sent to OPM and OPM's response.

E. If said approval is given for discontinued service retirement, the following will be done:

F. Management will advise all employees who meet the criteria for discontinued service retirement of their rights with respect to DSR. Management will also provide timely assistance and counseling to assist eligible employees in arriving at their decision to elect or not elect DSR.

G. The Local Union will be provided a list of all affected employees who meet the length of service and age requirement of DSR.

H. The Local Union and management will meet and discuss DSR issues at each affected installation to attempt to resolve disputes regarding implementation of the DSR process.

III. Positions of the Parties

1. Agency

According to the Agency, this proposal arose when the parties were negotiating over the impact and implementation of a reorganization of the Debt Management Units in six Program Service Centers. As part of that reorganization, the functions of two positions, Debt Management Specialist and Recovery Reviewer, were combined and the incumbents of the positions were reassigned to a new Debt Specialist position. The Agency asserts that the incumbents of the Recovery Reviewer position are not eligible for DSR because they are being reassigned to the new Debt Specialist position.⁽¹⁾ The Agency contends that in view of this ineligibility, requiring it to seek a determination from the Office of Personnel Management (OPM) concerning the eligibility of the employees for DSR is inconsistent with Government-wide regulations. In support of this claim, the Agency cites 5 C.F.R. § 831.504, which relates to retirement under the Civil Service Retirement System (CSRS), and 5 C.F.R. § 842.206, which relates to retirement under the Federal Employees Retirement System (FERS). It also cites several provisions of the Federal Personnel Manual (FPM), specifically, FPM Supplement 830-1, chapter 44, sections 44A1.1-1 D and 44A1.1-2 F, which concern retirement under CSRS, and sections 44B1.1-1 C and D, which concern retirement under FERS.⁽²⁾

The Agency argues that requiring it to seek an advisory opinion from OPM on whether the incumbents of the Recovery Reviewer position are eligible for DSR when it is clear that those employees are ineligible "makes no sense . . . ." Statement of position at 7. The Agency asserts that it has no obligation to bargain over this proposal under section 7117(a)(1) of the Statute because it is inconsistent with Government-wide regulations.

The Agency maintains that in the circumstances underlying this case, the incumbents of the Recovery Reviewer position have no legal right to DSR and that the proposal cannot be construed as concerning the exercise of such a legal right.

The Agency argues that this proposal is nonnegotiable for the additional reason that it interferes with management's rights to assign and retain employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. In this regard, the Agency contends that by requiring it to request OPM's approval of DSR for the incumbents of the Recovery Reviewer position, the proposal prevents it from reassigning those employees to other positions. By requiring it to seek DSR for employees whom it does not wish to separate, the Agency asserts that the proposal interferes with its right to retain employees.

The Agency argues that this proposal is not negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute because it excessively interferes with its management rights. According to the Agency, any possible adverse impact on the employees who were reassigned from the Recovery Reviewer to the Debt Specialist position is minimal. In this regard, the Agency contends that those employees are fully qualified for the new position to which they are reassigned and are not adversely affected by assuming the additional duties involved. The Agency asserts that the burden that the proposal imposes on the Agency outweighs any benefit to the employees. The Agency argues that the proposal requires it to take an action that, if legal, could lead to the separation of employees whom it wishes to retain. The Agency contends that such separations would mean the loss of well-trained, knowledgeable employees and a resulting impairment of its ability to carry out its mission.

2. Union

According to the Union, this proposal merely requires the Agency to obtain an advisory opinion from OPM on whether the incumbents of the Recovery Reviewer position are eligible for DSR. As authority for such advisory opinions, the Union cites FPM Supplement 830-1, chapter 44, section 44A4.1-1. The Union states that if OPM responds in the negative, the Agency incurs no additional obligations under the proposal.

The Union asserts that the Agency's arguments that the incumbents of the Recovery Reviewer position are ineligible for DSR concern the merits of the proposal, not its negotiability. The Union denies that this proposal would interfere with the Agency's assignment of the incumbents and argues that it is limited to requiring the Agency to ask OPM if the employees are entitled to DSR. The Union contends that the Agency's claim that this proposal excessively interferes with management's rights is unsupported and that the proposal is an appropriate arrangement "to mitigate the serious adverse impact of senior employees being reassigned with new and complex duties to a new occupation and functions." Response at 7.

III. Analysis and Conclusions

Initially, we emphasize that this proposal concerns DSR rather than Early Voluntary Retirement. The former is governed by 5 U.S.C. § 8336(d)(1) for employees covered under CSRS and by 5 U.S.C. § 8414(b)(1)(A) for employees covered under FERS. The latter is governed by 5 U.S.C. § 8336(d)(2) and 5 U.S.C. § 8414(b)(1)(B) for employees covered under CSRS and FERS, respectively.

Under 5 U.S.C. § 8336(d)(1) an employee who is covered under CSRS and who is separated from service involuntarily, except by removal for cause on charges of misconduct or delinquency, is entitled to an annuity if he or she meets the other criteria specified in that section. A comparable provision is made for employees who are covered under FERS. See 5 U.S.C. § 8414(b)(1)(A). OPM is responsible for administering these provisions and prescribing regulations to carry them out. See 5 U.S.C. § 8347 (CSRS) and 5 U.S.C. § 8461 (FERS). Regulations specifically relating to DSR are codified at 5 C.F.R. § 831.504 (CSRS) and 5 C.F.R. § 842.206 (FERS). OPM also has issued implementing instructions that are published in FPM Supplement 830-1, chapter 44, subchapter 44A (CSRS) and subchapter 44B (FERS).

Under these governing authorities, DSR is available only to employees who are separated involuntarily. See FPM Supplement 830-1, chapter 44, sections 44A1.1-1 A, 44A1.1-2 A, and 44A1.1-3 A (CSRS); FPM Supplement 830-1, chapter 44, sections 44B1.1-1 C and 44B1.1-2 A (FERS).

The first section of this proposal requires only that the Agency seek an opinion from OPM concerning whether the incumbents of the Recovery Reviewer position are eligible for DSR. The Agency argues that requiring it to seek such an opinion is inconsistent with OPM's regulations because, in its view, the incumbents do not qualify for DSR. We find that a determination as to whether the incumbents are eligible for DSR is distinct from the issue of whether the Agency may seek an opinion from OPM on the subject. Nothing in the specific regulatory provisions cited by the Agency governs the latter issue. Nor is it otherwise apparent to us that there is anything in the OPM regulations and instructions governing DSR that prohibits the Agency from seeking such an opinion.

The Union claims that the type of opinion that the proposal seeks qualifies as an advisory opinion of the sort referred to in FPM Supplement 830-1, chapter 44, section 44A4.1-1.⁽³⁾ However, even assuming that section 44A4.1-1 does not apply to the opinion sought by the proposal, we find nothing in FPM Supplement 830-1 indicating that agencies are prohibited from seeking opinions in circumstances other than those explicitly referred to in that section. In fact, it appears that the overall responsibilities of OPM in administering the CSRS and FERS include responding to inquiries from agency retirement counselors. See FPM Supplement 830-1, chapter 1, section 1C2.1-1 G. The Agency has not cited any basis for concluding, nor is any otherwise apparent to us, that requesting an opinion from OPM concerning employee eligibility for DSR is inconsistent with the OPM provisions contained in the Code of Federal Regulations and the FPM that govern retirement matters. Because we find no inconsistency between the proposal and OPM's regulations and implementing instructions, it is unnecessary to address the extent to which the implementing instructions contained in FPM Supplement 830-1 constitute Government-wide regulations within the meaning of section 7117 of the Statute.

Insofar as the Agency argues that seeking an opinion from OPM would be an exercise in futility, we find that this argument relates to the merits of the proposal and does not present a basis for finding it nonnegotiable. Any concerns that the Agency may have regarding the merits of this proposal should be raised in the negotiation process including, if necessary, proceedings before the Federal Service Impasses Panel. See, for example, National Federation of Federal Employees, Local 2119 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 42 FLRA 993, 1000-01 (1991).

Now we turn to the Agency's arguments that this proposal interferes with its management rights to assign and retain employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that requiring it to seek an opinion from OPM concerning the eligibility of the incumbents of the Recovery Reviewer position for DSR would prevent it from assigning those employees to other positions and would require it to separate employees whom it does not wish to separate. As we discussed earlier, eligibility for DSR is dependent on an employee being subject to an involuntary separation. Thus, it is contingent on the Agency taking action that subjects an employee to such a separation. The proposal does not require the Agency to assign or refrain from assigning any of the incumbents of the Recovery Reviewer position to any positions or work or to take any actions that would bestow eligibility for DSR on employees. It merely requires the Agency to seek an opinion from the authority responsible for administering the Federal retirement systems concerning what legal entitlement employees may have as a consequence of its reorganization of the Debt Management Units and to take further actions to implement any legal entitlement arising from OPM's determinations.

Under the proposal, these further actions would include advising and assisting employees who OPM has determined are eligible for DSR in processing their retirement applications. The Agency's arguments suggest that providing such advice and assistance relates to the exercise of management's rights to assign and retain employees and assign work because it would contribute to the separation of those employees from the Agency by retirement. Even assuming this to be the case, we find that this portion of the proposal merely would constitute a requirement that the Agency exercise its management rights in accordance with 5 U.S.C. § 8336(d)(1) and 5 U.S.C. § 8414(b)(1)(A). That is, all that the proposal requires is that if OPM determines that an employee is entitled to an annuity under those statutory provisions, the Agency will honor that entitlement. Proposals that relate to the exercise of management's rights under section 7106(a)(2) of the Statute and that require only that an agency comply with applicable law, including provisions of the United States Code, do not interfere with those management rights. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 389 (1991), petition for review filed, No. 91-1573 (D.C. Cir. Nov. 25, 1991).

Based on the foregoing, we reject the Agency's claim that this proposal directly interferes with its management rights to assign and retain employees and to assign work under section 7106(a)(2) of the Statute. In view of our conclusion that this proposal does not directly interfere with management's rights, it is not necessary to address the applicability of section 7106(b)(3) of the Statute to this proposal.

IV. Order

The parties shall upon request, or as otherwise agreed to by the parties, bargain concerning the disputed proposal.⁽⁴⁾

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. DSR is more fully explained in the "Analysis and Conclusions" portion of this decision.

2. The language that the Agency quotes as appearing at section 44A1.1-2 F. currently appears at section 44A1.1-3 G.

3. Although this portion of FPM Supplement 830-1 is addressed to CSRS employees, it is entirely applicable to FERS employees as well. FPM Supplement 830-1, chapter 44, section 44B1.1-1 C.

4. In finding that this proposal is negotiable, we make no judgment as to its merits.

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