[ v22 p580 ]
22:0580(63)NG
The decision of the Authority follows:
22 FLRA No. 63
NATIONAL TREASURY EMPLOYEES
UNION
Union
and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, REGION VI,
DALLAS, TEXAS
Agency
Case No. 0-NG-582
DECISION and ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute). It raises issues
concerning the negotiability of three Union proposals. The proposals
concern a reduction-in-force (RIF) within an operating division (Public
Health Service) of the Agency.
II. Union Proposal 1
"Competitive Area" is defined as all those positions under the
authority of the Principal Regional Official of HHS -- Dallas
within the commuting area of Dallas, Texas except those which have
been determined by the FLRA to be in "bargaining units" other than
that represented by Chapter 219, NTEU.
A. Positions of the Parties
The Agency argues that the proposal conflicts with an Agency
regulation for which a compelling need exists. The Union asserts that
the Agency has failed to demonstrate that a compelling need exists for
the regulation with which the proposal conflicts.
B. Analysis and Conclusions
The positions of the parties here are substantially identical to
those which they took concerning a similar proposal which was before the
Authority in National Treasury Employees Union and Department of Health
and Human Services, Region IV, 11 FLRA 254 (1983) (Union Proposal 1).
For the reasons expressed in DHHS, Region IV, /1/ the Authority rejects
the Agency's argument here that a compelling need exists for the
regulation /2/ on which it relies.
However, we find that this proposal is nonnegotiable for a reason
other than that raised by the Agency. OPM has recently prescribed
revised regulations regarding RIFs which are Government-wide regulations
within the meaning of section 7117 of the Statute. National Treasury
Employees Union and Department of the Treasury, Bureau of Government
Financial Operations, 22 FLRA No. 58 (1986). Among other things, those
regulations set forth criteria for defining competitive areas. They
require that a competitive area"be defined solely in terms of an
agency's organizational unit(s) and geographical location, and it must
include all employees within the competitive area so defined." (Emphasis
supplied.) 5 CFR 351.402(b), 51 Fed. Reg. 318 at 321 (1986). The
proposal does not meet this standard. It would in part define a
competitive area in terms of positions in particular bargaining units
rather than solely in terms of organizational units and geographical
location. Hence, it is inconsistent with a Government-wide rule or
regulation and it is not within the duty to bargain.
III. Union Proposal 2
Displacement within subgroups will be permitted between
competitive levels to the same extent OPM regulations permit
displacement between subgroups I-A and I-B.
A. Positions of the Parties
The Agency argues that this proposal conflicts with an Agency
regulation for which a compelling need exists (HHS Personnel Manual
Instruction 351-1-50A3). That regulation sets forth the Agency's policy
on types of reassignments of employees during a RIF which are within an
agency's discretion to allow under OPM regulations. The Agency's policy
specifically does not allow the type of reassignment proposed, that is,
employees displacing others in the same subgroup in different
competitive levels. /3/ The Agency argues that its regulation is
essential to preventing the serious disruption of its programs which it
contends would result from expanding employee displacement rights beyond
those required by OPM regulations. Because of this, it claims, its
regulation meets the criterion for compelling need which appears at
section 2424.11(a) of the Authority's Rules and Regulations.
Noting that OPM regulations prohibit an unqualified employee from
displacing another employee in a RIF, the Union asserts that the
Agency's arguments that its regulation is essential to the
accomplishment of its mission is without merit.
B. Analysis and Conclusions
Under OPM regulations an agency may in its discretion permit
employees who are competing for retention to displace other employees in
the same subgroup. 5 CFR 351.705(a)(1). In support of its argument
that there is a compelling need for its regulation the Agency asserts
only that an increased number of employees would be affected by a RIF if
expanded displacement were permitted. In the Authority's view this
alone does not demonstrate that the regulation is essential, as opposed
to helpful or desirable, to the accomplishment of the Agency's mission
and functions. In fact, the OPM regulations contain safeguards which
would permit the Agency to protect its ability to accomplish its mission
and functions even in the face of increased displacement actions. OPM
regulations require that provisions allowing for expanded displacement
be implemented in a manner consistent with the regulations as a whole.
5 CFR 351.705(b)(1). The regulations specifically require that an
employee must be qualified for any position to which assigned in a RIF
action. 5 CFR 351.702(a). Additionally, the regulations permit
agencies to make temporary and continuing exceptions to the normal order
of RIF actions where it is necessary to retain an employee on duties
which cannot be taken over by another employee without undue
interruption to a particular activity. 5 CFR 351.607 and 5 CFR 351.608.
Particularly in view of these regulatory provisions which allow
agencies to minimize the interruption of their activities which may
result from RIFs, the Authority finds that the Agency has not met its
burden of demonstrating a compelling need for its regulation. See
American Federation of Government Employees, AFL-CIO, Local 2670 and
Army and Air Force Exchange Service, Keesler Air Force Base Exchange,
Mississippi, 10 FLRA 71 (1982). Therefore, the Authority finds Union
Proposal 2 is within the duty to bargain.
The Authority addressed a similar proposal in International
Federation of Professional and Technical Engineers, AFL-CIO, NASA
Headquarters Professional Association and National Aeronautics and Space
Administration, Headquarters, Washington, D.C., 8 FLRA 212 (1982). In
that case the Authority found that proposal nonnegotiable. The
difference between that case and this is that in the NASA case the
agency alleged and demonstrated in the record that the proposal would
directly determine conditions of employment for employees outside of the
bargaining unit and for that reason was nonnegotiable. In this case the
Agency has made no similar allegation. Thus the different conclusions
reached in the two cases are a consequence of the different
circumstances present. See American Federation of Government Employees,
Local 32, AFL-CIO, and Office of Personnel Management, 14 FLRA 754
(1984), remanded sub nom. Local 32, American Federation of Government
Employees v. FLRA, 774 F.2d 498 (D.C. Cir. 1985). In that decision the
Authority noted that the responsibility for creating a record on which
it could resolve negotiability issues rested with the parties and that
where applicability of a proposal of nonunit employees was not raised by
the parties, the Authority would not consider it.
IV. Union Proposal 3
The Employer will provide for assignments across competitive
areas to positions from which any Group I or Group II employee was
promoted or an essentially identical position.
A. Positions of the Parties
The Agency argues that this proposal conflicts with an Agency
regulation which meets all of the Authority's illustrative criteria for
determining compelling need. Section 2424.11(a), (b) and (c) of the
Authority's Rules and Regulations. The Union contends that the Agency
regulation does not meet the compelling need criteria.
B. Analysis and Conclusions
The Authority finds that this proposal is nonnegotiable for a reason
other than that raised by the Agency. While OPM regulations previously
allowed assignments across competitive areas to be made at agency
discretion, the revised OPM regulations do not. See 48 Fed. Reg. 32304
at 32305 (1983). Under current OPM regulations, employees in a
competitive area compete only with each other, not with employees in
another competitive area. 5 CFR 351.402 and 351.701(a). /4/ As noted
in section II(B) of this decision, those OPM regulations are
Government-wide rules or regulations. Since Union Proposal 3 conflicts
with those regulations, it is not within the duty to bargain. In view
of this conclusion and the fact that the Agency's compelling need
argument was based in part on OPM regulations which have subsequently
been revised, it is unnecessary to address that argument.
V. 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 Proposal 2.
/5/ IT IS FURTHER ORDERED that the Union's petition for review insofar
as it relates to Union Proposals 1 and 3 be, and it hereby is,
dismissed.
Issued, Washington, D.C., July 15, 1986.
/s/ Jerry L Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) In DHHS, Region IV the Authority relied in part on an Office of
Personnel Management (OPM) regulation found at 5 CFR 351.701(a)(4). The
OPM regulations have since been revised. However, as identical
provision continues to appear at 5 CFR 351.702(a)(4). 51 Fed. Reg. 318
at 324-5 (1986).
(2) The same regulation, HHS Personnel Manual Instruction 351-1-40,
was at issue in that case as well as this one.
(3) Employees are placed in "tenure groups" according to the nature
of their appointment; i.e., career, career-conditional, indefinite,
etc. "Subgroup" placement is based on veteran status. 5 CFR 351.501.
Employees are grouped in "competitive levels" by the similarity of their
positions and grades. Positions placed in the same competitive level
are supposed to be interchangeable. 5 CFR 351.403.
(4) See also Personnel Manual Letter 351-20 at 19.
(5) In finding this proposal within the duty to bargain, the
Authority makes no judgment as to its merits.