21:0313(42)NG - NAGE, Local R14-87 and The Adjutant General of Kansas -- 1986 FLRAdec NG
[ v21 p313 ]
21:0313(42)NG
The decision of the Authority follows:
21 FLRA No. 42
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-87
Union
and
THE ADJUTANT GENERAL
OF KANSAS
Agency
Case No. 0-NG-910
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)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of two Union proposals.
II. Union Proposal 1
Article 12, Section 7: Change to read:
a. When the specific position, in an activity, from which an
individual has been removed or demoted through reduction in force
(RIF) is vacant and is being filled, the individual who was
removed or demoted will be returned to the position and/or grade
noncompetitively subject to paragraph b, below.
b. A basis for an individual not to be returned to his former
position and/or grade, noncompetitively is an unsatisfactory
performance rating which is documented in the individual's OPF, at
the time the position concerned becomes vacant, or documentation
that the individual's work either before or after the action by
reduction in force, was not at an acceptable level of competence.
c. If more than one individual meets the criteria contained in
a and b above, the employee who possessed the highest retention
standing at the time of the RIF action will be returned to the
concerned position and/or grade prior to others listed on the
retention register.
d. All individuals previously affected in a RIF without
personal cause, misconduct, or inefficiency, will receive special
consideration for being returned to their former position and/or
grade.
NOTE: FOR THIS SECTION THE TERM (sic) "FORMER POSITION" and
"CONCERNED POSITION" INCLUDES BUT IS NOT LIMITED TO THE
ACTIVITY
THE INDIVIDUAL WAS EMPLOYED AT, AT THE TIME OF THE RIF.
A. Positions of the Parties
The Agency alleges that the proposal is nonnegotiable because it
interferes with management's right under section 7106(a)(2)(C) to fill
positions by making selections from any appropriate source. The Agency
also alleges that the proposal violates management's right to assign
employees under section 7106(a)(2)(A) by requiring the reassignment of
demoted employees. The Union argues, citing the decision of the U.S.
Court of Appeals for the District of Columbia Circuit in American
Federation of Government Employees, AFL-CIO, Local 2782 v. Federal Labor
Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983), reversing and
remanding American Federation of Government Employees, AFL-CIO, Local
2782 and Department of Commerce, Bureau of the Census, Washington, D.C.,
7 FLRA 91 (1981), that the provision constitutes an "appropriate
arrangement" within the meaning of section 7106(b)(3) of the Statute for
employees adversely affected by the exercise of management's rights.
B. Analysis
Union Proposal 1 in this case, which provides reemployment or
repromotion rights for persons removed or demoted in a
reduction-in-force (RIF), is comparable to Provision 2 at issue in
National Association of Government Employees, Local R14-87 and Kansas
Army National Guard, 21 FLRA No. 4 (1986).
The proposal in this case, like Provision 2 in that case, would apply
only when management decides to fill positions from which employees have
been removed or demoted in a RIF. Similarly, it would only require
management to reemploy or promote employees who were qualified for and
had previously performed acceptably in the position being filled. Union
Proposal 1, therefore, does not impose any greater burden on management
or provide any greater benefit for employees than the provision in
Kansas Army National Guard. As with the provision at issue in Kansas
Army National Guard, the burden on management in these circumstances is
insubstantial in comparison to the detriment originally suffered, and
the benefit later obtained, by the affected employees.
C. Conclusion
Consistent with our reasoning in Kansas Army National Guard, we hold
that Union Proposal 1 does not excessively interfere with management's
right, under section 7106(a)(2)(C), to fill vacant positions by making
selections from any appropriate source and that it is an appropriate
arrangement under section 7106(b)(3). We note that while the Kansas
Army National Guard case involved only repromotion rights, and this case
involves repromotion and reemployment rights, it does not appear, nor do
the parties argue, that there is any material difference in those rights
so as to affect the outcome in this case.
We further conclude that Union Proposal 1 does not excessively
interfere with management's right to assign employees under section
7106(a)(2)(A). Even if the Agency's argument that reemployment and
repromotion are "assignments" within the meaning of section
7106(a)(2)(A) were credited, there would not be any different or
additional substantive effect on management's rights or on management's
practical needs. Therefore, we find that by designating the particular
employee to be reemployed or repromoted, that is, "reassigned," the
proposal would not excessively interfere with management's right to
assign employees.
III. Union Proposal 2
Article 13: Add the following note:
NOTE: Provisions of Article 12, Section 7, (Union Proposal 1,
supra) of this agreement will take precedent (sic) over this
article.
A. Positions of the Parties
As explained by the parties, Union Proposal 2 requires the Agency to
abide by Article 12, Section 7, in any situation where that provision
conflicts with the Agency's RIF regulations which are cited in Article
13. The Agency contends that, by making Union Proposal 1 applicable in
RIF situations, Union Proposal 2 is nonnegotiable for the same reasons
it alleges Union Proposal 1 is nonnegotiable. In addition, the Agency
argues that Union Proposal 1 could not, as required by Union Proposal 2,
take precedence over Article 13 because the latter incorporates
Technician Personnel Regulation (TPR) 300 (351), an Agency regulation
for which the Authority has found a compelling need to exist. The Union
contends that if Union Proposal 1 is negotiable, Union Proposal 2, which
depends upon it, is also negotiable.
B. Analysis
Because it would also give force to Article 12, Section 7 (Union
Proposal 1 in this case), the proposal presents issues as to management
rights which are identical to those addressed in the discussion of Union
Proposal 1. For the reasons set forth above we find that this proposal
does not excessively interfere with management's rights under the
Statute.
The Agency further argues that by giving Article 12, Section 7,
priority over Article 13, Union Proposal 2 conflicts with an Agency
regulation, Technician Personnel Regulation (TPR) 300 (351), for which a
compelling need exists. The Agency cites certain Authority decisions in
support of its argument. /1/ Those decisions, however, held that there
was a compelling need only for that part of the cited regulation which
requires civilian technician RIF retention standing to be based on each
employee's civilian and military appraisals. These decisions stand for
the limited proposition that that part of the regulation constituted a
bar to proposals insofar as they would have eliminated the military
appraisal as a factor in determining technician retention standing. The
Agency does not claim, or refer to any other decision in which the
Authority has found, that a compelling need exists for any other portion
of that regulation. Thus it appears that the Agency is only arguing
that Union Proposal 2 conflicts with the part of its RIF regulations
which prescribe the criteria for determining an employee's retention
standing.
The Agency's argument, however, overlooks the fact that the proposal
requires the selection of the employee with the highest retention
standing and that the standing would be determined in accordance with
the Agency's regulations. That is, the proposal by its express terms
must be applied consistent with precisely that part of its regulations
on which the Agency relies to bar negotiation.
C. Conclusion
Since the Agency has not demonstrated any conflict between the
proposal and the cited Agency regulation, that regulation does not
constitute a bar to negotiation of Union Proposal 2. Union Proposal 2,
therefore, constitutes a negotiable appropriate arrangement under
section 7106(b)(3) and is within the Agency's duty to bargain under the
Statute.
IV. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning Union Proposals 1
and 2. /2/
Issued, Washington, D.C., April 16, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) The Agency cites American Federation of Government Employees,
AFL-CIO, Local 2953 and National Guard Bureau, Office of the Adjutant
General, Nebraska, 7 FLRA 87 (1981), affirmed American Federation of
Government Employees, AFL-CIO, Local 2953 v. Federal Labor Relations
Authority, 730 F.2d 1534 (D.C. Cir. 1984); Association of Civilian
Technicians, Montana Air Chapter and Department of the Air Force,
Montana Air National Guard, Headquarters 120th Fighter Interceptor Group
(ADTAC), 11 FLRA 505 (1983), affirmed as to these matters and reversed
and remanded as to other matters sub nom. Association of Civilian
Technicians, Montana Air Chapter v. Federal Labor Relations Authority,
756 F.2d 172 (D.C. Cir. 1985), Decision and Order on Remand, 20 FLRA No.
85 (1985). See also Association of Civilian Technicians, Pennsylvania
State Council and Pennsylvania Army and Air National Guard, 14 FLRA 38
(1984) (Proposal 2).
(2) In deciding that the proposals are within the duty to bargain,
the Authority makes no judgment as to their merits.