[ v26 p916 ]
26:0916(106)NG
The decision of the Authority follows:
26 FLRA No. 106
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R7-23
Union
and
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS 375th AIR BASE
GROUP (MAC), SCOTT AIR FORCE
BASE, ILLINOIS
Agency
Case No. 0-NG-933
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statment of the Case
This case comes 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 presents issues as
to the negotiability of two proposals.
II. Proposal 1
The FLRA Members disagree over the negotiability of this proposal.
The decision and order on Proposal 1 and Chairman Calhoun's dissent
immediately follow this decision.
III. Proposal 2
RIF principles will apply whenever an employee is scheduled for
separation or downgrade through no fault of his/her own.
A. Positions of the Parties
The Agency argues that the proposal is inconsistent with management's
rights under section 7106(a)(2)(A) of the Statute to assign and lay off
employees to the extent that the proposal would apply RIF
(reduction-in-force) principles to the termination of temporary and
intermittent employees. The Agency asserts that AFR 40-7 allows it to
designate which temporary and intermittent employees it will lay off
when a RIF is conducted and that the proposal would interfere with that
designation. The Agency also argues that the application of RIF
principles to employees downgraded because of the issuance of new
classification standards interferes with the Agency's right to determine
whether or not to conduct a RIF and is inconsistent with AFR 40-7 for
which a compelling need exists under section 2424.11(b) of the
Authority's Rules and Regulations.
The Union argues that its proposal does not interfere with the
exercise of management's rights under section 7106(a)(2)(A) and disputes
the Agency's assertion of compelling need. The Union argues instead
that the proposal is within the duty to bargain under section 7106(b)(2)
and (3) of the Statute.
B. Analysis and Conclusions
1. Management Rights
The Agency's RIF regulation, AFR 40-7, defines a RIF as "the release
of an employee from a competitive level, because his or her position has
been abolished or because he or she has been displaced by a senior
individual." /1/ The regulation furthers outlines the circumstances
under which RIFs may be required such as: if a NAF instrumentality is
dissolved; an installation is deactivated; a function is transferred;
a reorganization takes place; a position is reclassified due to a
change in duties; or there is a need to place an employee with
reemployment or restoration rights. The Union's proposal would apply
the RIF principles -- apparently, RIF principles -- set forth in the
regulation whenever an employee is scheduled for separation or downgrade
through no fault of his or her own. The Union indicates that the cited
regulation does not allow for this for all employees or for employees
who have had classification standards applied.
The Agency points to two situations where application of the RIF
principles would be inconsistent with the exercise of management's
rights. First, the Agency claims that AFR 40-7 allows it to designate
which temporary or intermittent employee will be laid off when a RIF is
conducted. By replacing the Agency's designation of an employee with a
designation resulting from the application of the RIF procedures, the
Agency argues that the proposal would violate its right to remove
employees and to determine who will be removed under section
7106(a)(2)(A) of the Statute.
Second, the Agency states that AFR 40-7, Chapter 10-9(a) provides
that RIF procedures do not apply when employees are affected by the
application of new classification standards. /2/ The Agency argues that
the proposal would require that a RIF be conducted, which would result
in the least senior employee being affected by the application of the
new classification standard rather than the incumbent of the affected
position. Thus, according to the Agency, this is contrary to the
Agency's right to assign employees under section 7106(a)(2)(A).
For the reasons set forth below, we find that the proposal is a
negotiable procedure under section 7106(b)(2) of the Statute. In our
view, the Union is seeking to apply the Agency's own procedures
governing RIF, as set forth in AFR 40-7, to certain situations -- that
is, where the Agency determines to separate or downgrade an employee
through no fault of the employee. As in any RIF situation after an
agency has determined which positions will be reduced in grade or
abolished, formulas or procedures are used that will identify the
employees who will ultimately be affected. Here, the Agency established
procedures that are used in various situations. The procedures rank
employees based on factors that take into account such matters as
seniority and performance. The proposal essentially provides that when
the Agency decides to take one of the specified actions, the established
procedures will be used to determine which employees will be affected.
The proposal does not require the Agency to lay off employees and it
does not interfere with the Agency's rights under section 7106(a)(2)(A)
to determine whether positions will be abolished or which positions will
be abolished since those determinations will already have been made by
the Agency. It is only after the Agency has made the determinations
that the proposal would require the application of the Agency's own
procedures for determining which employees will be affected. In like
manner, the proposal does not interfere with the Agency's rights to
determine whether and/or which positions will be downgraded as a result
of new classification standards. The proposal does not affect in any
way the actual classification of the position. Furthermore, it does not
prevent the Agency from determining what qualifications are necessary to
perform any given job and whether employees affected by the downgrading
possess the necessary qualifications to perform the job. In other
words, the proposal would not result in the reassignment of an employee
to a position that the employee could not qualify for. Thus, the
proposal does not violate the Agency's right under section 7106(a)(2)(A)
to assign employees. In sum, the proposal would simply apply a
procedure, established by the Agency, when the Agency takes action that
results in the separation or downgrade of an employee when the employee
is not at fault.
2. No compelling need has been shown to bar negotiations
The Agency argues that as the proposal applies to employees
downgraded as a result of a new classification, the proposal is also
inconsistent with AFR 40-7 which preserves the merit principle of
equitable treatment of employees. As was previously argued, the
proposal would affect not just the incumbent of the position that was
downgraded but would also affect employees with the least amount of
seniority thereby creating inequity for the least senior employees. In
response, the Union claims that the use of the RIF procedures would
create greater equality among employees than would otherwise exist since
the proposal would ensure that objective standards and procedures are
available when such action is taken.
We find that the Agency has failed to establish that a compelling
need exists for the regulation so as to bar negotiations on the
proposal. While the Agency has demonstrated that the proposal would
conflict with AFR 40-7, Chapter 10-9(a), to the extent that the
regulation now precludes its application to downgrading based on new
classification standards, the Agency has not substantiated its
contentions by reference to any specific merit principle which its
regulation assertedly implements, nor has it demonstrated how the
proposal would require it to act in a manner that is inconsistent with
basic merit principles.
IV. Order
The Agency must bargain, upon request, or as otherwise agreed to by
the parties, over the proposal. /3/
Issued, Washingtion, D.C., April 30, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
DECISION AND ORDER ON PROPOSAL 1
Proposal 1
When an employee changes grade for whatever reason, their total
hours of accrued annual leave will not be changed.
A. Positions of the Parties
The Agency argues that the proposal is outside the duty to bargain
for two reasons. First, the Agency contends that section 7103(a)(14) of
the Statute does not authorize bargaining on wages and fringe benefits
for the non-appropriated fund (NAF) employees involved here. Second,
the Agency argues that the proposal would conflict with an agency
regulation for which there is compelling need under section 2424.11(b)
of the Authority's Rules and Regulations. More specifically, the Agency
claims that AFR 40-7, which governs annual leave, treats all NAF
employees in a uniform manner with respect to the transfer of accrued
leave. /4/ The proposal, the Agency argues, would violate basic merit
principles of treating employees in a uniform manner, free from
capricious judgment and discriminatory treatment.
The Union argues that it is not seeking to bargain over wages and
fringe benefits but, rather, is seeking to bargain over the procedures
to be used in transferring accrued hours of annual leave. The Union
indicates that its intent behind the proposal is to allow an employee
who has been promoted to carry over into the new position the same
amount of accrued annual leave that the employee had in the position
from which promoted. The Union further argues that the Agency has
failed to support its assertion of compelling need for AFR 40-7 to bar
negotiations.
B. Analysis and Conclusions
1. The proposal is a negotiable condition of employment
In American Federation of Government Employees, AFL-CIO, Local 1897
and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA
No. 41 (1986), petition for review filed sub nom. Department of the Air
Force, Eglin Air Force Base, Florida v. FLRA, No. 87-3037 (11th Circ.
Feb. 2, 1987), we held that nothing in the Statute or its legislative
history bars negotiation of proposals relating to pay and fringe
benefits insofar as: (1) the matters proposed are not specifically
provided for by law and are within the discretion of the agency, and (2)
the proposals are not otherwise inconsistent with law, Government-wide
rule or regulation or an agency regulation for which a compelling need
exists. Based on that analytical framework, we held that the proposal
in that case, which required the agency to pay up to a certain
percentage of the premium cost of health insurance for NAF employees,
was within the duty to bargain. We noted in that case also that in the
Federal sector, wages and fringe benefits of most employees are
established and controlled by law. However, there are exceptions where
matters concerning the nature or amount of the wages and fringe benefits
are left to the discretion of the employing agencies. See also American
Federation of Government Employees, AFL-CIO, Local 997 and Department of
the Air Force, Maxwell Air Force Base, Alabama, 24 FLRA No. 51 (1986),
petition for review filed sub nom. Department of the Air Force, Maxwell
Air Force Base, Alabama, v. FLRA, No. 87-7102 (11th Cir. Feb. 11, 1987)
(proposal concerning payment by the employer for various other types of
insurance, including health insurance, was found to be within the scope
of bargaining).
The case before us also involves NAF employees and, more
particularly, concerns their accrued annual leave. In Service Employees
International Union, Local 556, AFL-CIO and Department of the Navy,
Marine Corps Exchange 0911, Marine Corps Air Station, Kaneohe Bay,
Hawaii, 26 FLRA No. 47 (1987), we found that leave benefits for NAF
employees are governed not be Federal law, but by agency regulations.
See also American Federation of Government Employees, AFL-CIO, Local
1786 and U.S. Marine Corps, Marine Corps Exchange, Henderson Hall,
Arlington, Virginia, 26 FLRA No. 54 (1987). The Agency here has not
argued that the Union's proposal concerns a matter that is specifically
provided for by Federal law. Rather, the Agency cites to its own
regulation, AFR 40-7, as governing leave for the NAF employees. Since
matters relating to leave are not specifically provided for by Federal
law, but are within the agency's discretion, the matter is not excepted
from bargaining under section 7103(a)(14) of the Statute, as alleged.
2. No compelling need has been shown to bar negotiations
To establish that a proposal is nonnegotiable on the basis of
compelling need, an agency must: (1) identify a specific agency-wide
regulation; (2) show that there is a conflict between its regulation
and the proposal; and (3) demonstrate that its regulation is supported
by a compelling need with reference to the Authority's illustrative
standards set forth in section 2424.11 of the Aurhtority's Rules and
Regulations (5 CFR Section 2424.11). Generalized and conclusionary
reasoning does not support a finding of compelling need. American
Federation of Government Employees, AFL-CIO, Local 3804 and Federal
Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986)
(Proposal 7).
Here, the Agency claims that a compelling need exists for AFR 40-7 to
bar negotiations on the proposal because the regulation implements basic
merit principles. Specifically, the Agency states that its policy is
designed in part to treat all NAF employees "equitably and fairly and
according to Federal law, Executive Orders, and regulations that apply"
and to "(p)rovide a basis for achieving greater uniformity among NAFIs
in nonappropriated fund personnel management." Agency Statement of
Position at 2-3. Adherence to the proposal, the Agency argues without
elaboration, would violate "the basic merit principle of treating
employees in a uniform manner free from capricious judgment and
discriminatory treatment." Agency Statement of Position at 13-14.
The Agency's argument cannot be sustained. The Agency does not cite
a specific merit system principle, see 5 U.S.C. Section 2301, and it is
thus unclear on what merit principle the Agency is attempting to rely.
Moreover, as to the Agency's specific contentions as to the need for
"uniform" treatment of employees, those contentions appear to be based
on the premise that nothing short of absolute uniformity will prevent
arbitrary or discriminatory treatment. If this were the case, then an
agency could free itself of the obligation to bargain simply by claiming
it needs to maintain a uniform policy with respect to any particular
condition of employment. We do not view such an outcome as being either
consistent with the purposes and policies of the Statute or required by
"basic merit principles." Therefore, we find that the Agency has not
sustained its claim that a compelling need exists for its regulation so
as to bar negotiations on the proposal. See also American Federation of
Government Employees, AFL-CIO, Local 1928 and Department of the Navy,
Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 451
(1980).
C. Order
The Agency must upon request, or as otherwise agreed to by the
parties, bargain on Proposal 1. /5/
Issued, Washington, D.C., April 30, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun
As in American Federation of Government Employees, AFL-CIO, and
Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No.
41 (1986), petition for reivew filed sub nom. Department of the Air
Force, Eglin Air Force Base, Florida v. FLRA, No. 87-3073 (11th Cir.
February 2, 1987), the bargaining unit in this case is composed of
Non-appropriated Fund Instrumentality (NAFI) employees. In my opinion
in that case, I stated that in the absence of a clear expression of
Congressional intent to make wages and money-related fringe benefits
negotiable, I would find that these matters are not within the duty to
bargain under the Statute. Proposal 1 in this case concerns the rate at
which employees are paid for accrued annual leave: a money-related
fringe benefit. For the reasons stated in my opinion in Eglin Air Force
Base, therefore, I do not join the majority opinion.
I also stated in Eglin Air Force Base that I would find a compelling
need for the NAFI regulatory scheme under section 2424.11(a) of the
Authority's Regulations. See also Service Employees International
Union, Local 556, AFL-CIO and Department of the Navy, Marine Corps
Exchange 0911, Marine Corps Air Station, Kaneohe Bay, Hawaii and
Department of the Army, U.S. Army Support Command, Fort Shafter, Hawaii,
26 FLRA No. 47 (1987). In my view, this overall regulatory scheme as it
relates to wages and money-related fringe benefits is necessary to
maintain the uniformity of treatment of NAFI employees which is, in
turn, essential to the accomplishment of the Agency's worldwide
missions. In this case, Proposal 1 is inconsistent with AFR 40-7,
section 8-3(e), which concerns the method by which employees who
transfer from one Air Force NAFI to another are paid for accrued annual
leave. The Agency argues that a compelling need exists for this
regulation on a different basis (section 2424.11(b) of our regulations)
than argued in previous cases. Consistent with my previous opinions,
however, I would find that the regulation bars negotiation on the
Union's proposal under section 2424.11(a).
Issued, Washingtion, D.C. April 30, 1987.
/s/ Jerry L Calhoun, Chairman
--------------- FOOTNOTES$ ---------------
(1) AFR 40-7, Chapter 5-5(b)
(2) That section provides, in part, as follows:
This paragraph appllies when a position needs to be downgraded,
because of a change in classification standards, or a
misclassification needs to be corrected. This includes correcting
a tentatively classified position changed by a higher headquarters
final classification decision. RIF procedures do not apply.
(3) In finding the proposal to be within the duty to bargain, the
Authority makes no judgment as to its merits.
(4) Section 8-3.e. of AFR 40-7 addresses the transfer of accrued
annual leave and provides as follows:
When a regular employee moves to another Air Force NAFI, he or
she is paid for all accrued and accumulated annual leave.
However, if the employee elects, and the gaining and losing NAFIs
agree, annual leave credit and the money to cover its cost may be
transferred from the losing to the gaining NAFI. Dollar liability
is transferred by the losing NAFI to the gaining NAFI by a
transfer of funds and is converted by the gaining NAFI to leave
credit based on the new pay rate. For example, 12 hours at $4 an
hour, fund transfer is $48. If the new rate is $6 an hour, the
leave credit is 8 hours; 300 hours at $4 an hour, fund transfer
is $1,200. If the new rate is $6 an hour, the leave credit is 200
hours.
(5) In deciding that Proposal 1 is within the Agency's duty to
bargain, we make no judgment as to its merits.