23:0396(56)CA - HHS, SSA, Dallas Region and AFGE, National Council of SSA-Field Office Locals -- 1986 FLRAdec CA
[ v23 p396 ]
23:0396(56)CA
The decision of the Authority follows:
23 FLRA No. 56
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, DALLAS REGION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
NATIONAL COUNCIL OF SOCIAL SECURITY
ADMINISTRATION-FIELD OFFICE LOCALS
Charging Party
Case No. 6-CA-40044
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority, in
accordance with section 2429.1(a) of the Authority's Rules and
Regulations, based on a stipulation of facts by the parties, who have
agreed that no material issue of fact exists. Both the Respondent and
the General Counsel have filed briefs for the Authority's consideration.
The complaint alleges that the Respondent committed an unfair labor
practice in violation of section 7116(a)(1) and (5) of the Federal
Service Labor-Management Relations Statute (the Statute) by improperly
refusing to bargain over one of the three proposals submitted by the
Charging Party (the Union) during negotiations over the impact and
implementation of management's decision to downgrade certain positions.
The disputed proposal concerns what shall constitute the declination of
a reasonable offer of a comparable position, resulting in the loss of
retained grade and pay, where employees have been downgraded by
reclassification.
II. Background
In 1981, officials in the Respondent's Dallas Regional Office
conducted an audit of its "Mail and Supply Clerk" positions at the GS-4
level. They concluded that the position was not properly classified at
the GS-4 level, and reclassified it at the GS-3 level. As a result of
this reclassification, the Respondent immediately discontinued filling
its Mail and Supply Clerk positions at the GS-4 level.
In 1983, the Respondent downgraded its GS-4 Mail and Supply Clerks
located in Dallas, Fort Worth, Waco, Houston, and Brownsville, Texas,
and Albuquerque, New Mexico, to the GS-3 level. Consistent with Federal
regulations, the Respondent afforded retained grade and pay for a period
of two years to its Mail and Supply Clerks who were downgraded as the
result of the reclassification of their positions. /1/
In connection with this action, the Respondent sought specific
proposals from the Union as to the impact and implementation of the
downgradings, noting that affected employees could seek reassignment and
compete for higher-graded positions during the two-year retention
period. Under Federal regulations, eligibility for grade retention
ceases if the employee declines a "reasonable offer" of a position for
which the grade is equal to or higher than the retained grade, and
eligibility for pay retention ceases if the employee declines a
"reasonable offer" of a position for which the rate of basic pay is
equal to or higher than the retained pay. /2/
The Union replied to the Respondent's solicitation with the following
three bargaining proposals:
I. Management will take all necessary actions to assure that
the affected employees will have the opportunity to exercise their
full range of rights to priority consideration for other positions
as afforded under applicable law, regulations, contract
provisions, past practice and the Agency policy. Management will
engage in no acts to discourage the exercising of the priority
considerations.
II. The failure to utilize a priority consideration will not
constitute a Declination of a Reasonable Offer.
III. The failure to accept the offer of a position under any
one of the following circumstances will not constitute a
Declination of a Reasonable Offer: (1) The employee does not
believe that he (or she) could perform satisfactorily in the
offered position, (2) The employee has attained minimum age and
length of service for retirement, (3) The employee believes that
the change in positions would create undue personal hardship.
The Respondent agreed to bargain on the first two proposals, but
declined to bargain on the third. The Respondent took the position that
the third proposal was not negotiable because it was contrary to
Government-wide policy concerning the requisite elements of a reasonable
offer, as set forth in the Federal Personnel Manual (FPM) by the U.S.
Office of Personnel Management (OPM). The Union asserted that the FPM
specifically provides that an agency may establish factors in addition
to those required by regulation for determining whether an offer of
reassignment or promotion to another position constitutes a "reasonable
offer." The Respondent disagreed, and contended that, in any event,
additional factors must be established at the Agency's national level,
not at the regional level involved here. The Union then filed its
unfair labor practice charge, and the complaint in this case was issued.
III. Positions of the Parties
A. The General Counsel makes the following arguments in support of
its contention that the last of the Union's three proposals was
negotiable:
1. While management has the full authority to reduce its
employees in grade or pay as a consequence of a proper
reclassification of their positions, it must nonetheless
negotiate, under section 7106(b)(2) and (3) of the Statute, as to
"procedures" and "appropriate arrangements" for those bargaining
unit members who have been adversely affected because of a
reduction in grade and pay.
2. The Respondent recognized its duty to bargain in this case
when it notified the Union of the impending action and solicited
specific proposals regarding the impact and implementation of the
action.
3. The Respondent's insistence that it had no (or very
limited) authority to add to the requisite elements of a
"reasonable offer" is expressly contradicted by the language of
the FPM on which the Respondent relies in support of its position
in this regard.
B. The Respondent, on the other hand, makes the following arguments
in support of its position that the last of the Union's proposals is not
negotiable:
1. A classification action is explicitly excluded under
section 7103(1)(14)(B) and (C) of the Statute as a negotiable
"condition of employment."
2. The classification action in this case does not constitute
an exercise of a retained management right under section
7106(a)(2)(A) of the Statute so as to be subject to impact and
implementation bargaining under section 7106(b)(2) and (3).
3. Even if the impact and implementation of classification
actions were negotiable in general, this case presents an
exception because the Respondent's management had "very little
discretion under applicable statutes and regulations to bargain
over such matters."
4. Pertinent legal precedent, as well as the parties' own
bargaining agreement, provide that agency management is bound by
existing Government-wide rules and regulations, /3/ and that the
OPM provision concerning the definition of a "reasonable offer"
for purposes of pay and grade retention constitutes a
Government-wide rule or regulation which imposes the parameters of
such a "reasonable offer" to the exclusion of the terms of the
Union's proposal.
5. In conclusion, the proposal conflicts with management's
right to direct the work force and assign work to employees under
section 7106(a)(2) (A) and (B) of the Statute.
IV. Analysis
A. Negotiability of the Union's Proposal in General
In March Air Force Base, Riverside, California, 13 FLRA 255 (1983),
the Authority held that, consistent with section 7103(1)(14)(C) of the
Statute and Authority precedent, bargaining proposals which relate
directly to the classification of positions do not concern "conditions
of employment" and therefore are not within the duty to bargain under
the Statute. The Authority further found, however, that the duty to
bargain does apply to the implementation of downgradings to be effected
as the result of the reclassification of positions, and to the impact of
such reclassification on affected employees, "to the extent consonant
with law and regulation." The Authority followed this finding in
Department of Transportation, Federal Aviation Administration, 19 FLRA
No. 61 (1985), concluding that the agency was obligated to bargain over
the procedures and appropriate arrangements for employees adversely
affected by the agency's decision to reclassify positions, resulting in
downgrades, reassignments, and promotions. The same rule of law applies
equally here.
Also in the March Air Force Base decision, the Authority discounted
the agency's argument that, even if a duty to bargain existed, the
agency had little discretion under applicable statutes and regulations
to bargain on such matters. The Authority noted that grade and pay
retention are specifically provided for by law and regulation, and
therefore may not be subject to bargaining under section 7103(a)(14)(C)
of the Statute. The Authority concluded, however, that the agency had
presented no evidence that the union's proposals were removed from the
scope of bargaining, either because they were specifically provided for
within the meaning of section 7103(a)(14)(C), or because the agency was
left with no discretion to act under those particular circumstances.
The Authority therefore ordered the agency to take certain steps to
offer the union the opportunity to negotiate about the impact and
implementation of its reclassification and downgrade action.
Under section 7117(a)(1) of the Statute, a Federal agency's duty to
bargain does not extend to proposals that are "inconsistent with any
Federal law or any Government-wide rule or regulation . . ." In this
case, an OPM regulation at 5 C.F.R. Section 536.206 provides that a
"reasonable offer," the declination of which terminates eligibility for
grade and pay retention, is composed of six specific elements. /4/ The
terms of that regulation clearly require that, at a minimum, all six
elements must be present for an offer to be a "reasonable offer." An FPM
provision published subsequently by OPM stipulates that the regulatory
requirements are the "minimum conditions which must be met for an offer
to be reasonable . . . ," so that "(a)gencies may also establish
additional conditions which must be met" before an "offer" of
reassignment or promotion may be deemed "reasonable." FPM ch. 536,
subch. 5, sec. 5-1(f)(2) (Oct. 1, 1981). This FPM provision represents
OPM's interpretation of its own regulations, see FPM Introduction (Feb.
14, 1983), and FPM ch. 171-5, sec. 2-1 (June 25, 1984), and is adopted
for purposes of this decision because it is consistent with the
regulation.
The Respondent also asserted that "changes in the current policy"
with regard to the requirements of a "reasonable offer" could only be
effectuated at the Agency's national level because the regional office
was not empowered to do so. The Respondent offered no evidence to
support its assertion. In fact, the record indicates that the
Respondent, in deciding to downgrade the GS-4 Mail and Supply Clerks at
certain locations within the Dallas Region, sought specific proposals
from the Union concerning the impact and implementation of that decision
on these unit employees.
The Authority concludes that the Respondent has discretion to add to
the six elements of a "reasonable offer" required by Federal regulation.
In addition to the regulatory requirements for continued entitlement to
retained grade and pay for two years after a downgrade based on position
reclassification, other requirements for such retention therefore may be
negotiable.
B. Negotiability of the Union's Proposal
The Union proposed three circumstances under which the downgraded
employees would not be deemed to have declined a "reasonable offer"
which would terminate their eligibility for retained grade and pay.
Those three circumstances are as follows:
(1) Where the employee believes that he could not perform
satisfactorily in the offered position;
(2) Where the employee has attained the minimum age and length of
service for retirement; and
(3) Where the employee believes that taking on an offered position
would create an undue personal hardship.
The Respondent contends that this proposal would eliminate its
discretion to exercise its reserved management rights under section
7106(a)(2)(A) and (B) of the Statute to "direct" and "assign work" to
the employees reduced in grade or pay as a result of the
reclassification of their positions.
Contrary to the Respondent's position, we find that the disputed
proposal in this case does not conflict with management's rights to
"direct" and "assign work" to employees under section 7106(a)(2)(A) and
(B) of the Statute. Rather, it involves employees who have been placed
in lower-graded positions for reasons other than personal cause and who
are entitled to retained grade and pay for up to two years under law and
Governmentwide regulation. 5 U.S.C. Sections 5361-66; and 5 C.F.R.
part 536. Under this law and regulation an employee's entitlement to
retained grade and pay ends if the employee declines a "reasonable
offer" of another position with a grade and pay equivalent to or greater
than the employee's former position. While the employee clearly has the
right to refuse such an offer, to do so terminates the employee's
entitlement to retained grade and pay and the employee would remain in
the lower-graded position. The proposal in this case concerns only what
constitutes such a "reasonable offer," and not whether management can,
for example, "involuntarily" assign an employee to any position.
The Union's proposal would allow an affected employee to reject an
otherwise "reasonable offer" when the employee simply "believes" that he
could not perform the duties of the offered position -- implicitly
regardless of an agency determination of qualification -- or when he
"believes" that accepting the offered position would create an "undue
personal hardship." The proposal also would permit the affected employee
to reject an otherwise "reasonable offer" on the basis of his immediate
eligibility for retirement. By granting such broad discretion to
affected employees, the disputed proposal could thwart all good faith
efforts by the Respondent to make "reasonable offers" of reassignment.
Employees who represented that they "believe" subjectively that they
cannot perform the duties of the offered positions or that the positions
would result somehow in an "undue personal hardship," or who
coincidentally happen to be qualified for retirement, would be entitled
to decline otherwise reasonable offers. The Authority finds that the
proposal conflicts with OPM's Government-wide regulatory requirements
for determining what constitutes a "reasonable offer." /5/ Accordingly,
the Union's proposal is not negotiable, and the complaint in this case
is dismissed.
V. Conclusion
The Authority has considered all the facts and circumstances of this
case, including the positions of the parties, and concludes that the
Respondent did not violate section 7116(a)(1) or (5) of the Statute, as
alleged. We shall therefore dismiss the complaint.
ORDER
IT IS ORDERED that the complaint in Case No. 6-CA-40044 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., September 23, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) 5 C.F.R. Section 536.101(a).
(2) 5 C.F.R. Sections 536.207 and 536.209. The definition of a
"reasonable offer," the declination of which may terminate eligibility
for retained grade and pay, is set forth at 5 C.F.R. Section 536.206,
promulgated on Dec. 30, 1980; 45 Fed. Reg. 85656.
(3) In addition to the provisions of the pertinent bargaining
agreement, section 7117(a)(1) of the Statute itself specifically
provides that the duty to bargain in good faith does not extend to
matters "inconsistent with any Federal law or any Government-wide rule
or regulation . . . ." See discussion in the text.
(4) The six specific elements of a "reasonable offer," set forth at 5
C.F.R. Section 536.206, are as follows:
(1) The offer must be in writing, and must include an official
position description of the offered position; and
(2) The offer must inform the employee that an entitlement to
grade or pay retention will be terminated if the offer is declined
and that the employee may appeal the reasonableness of the offer
as provided in Section 536.302; and
(3) The offered position must be of tenure equal to or greater
than that of the position creating the grade or pay retention
entitlement; and
(4) The offered position must be in an agency, as defined in 5
U.S.C. Section 5102, although not necessarily in the same agency
in which the employee is serving at the time of the offer; and
(5) The offered position must be full-time, unless the
employee's position immediately before the change creating
entitlement to grade or pay retention was less than full-time, in
which case the offered position must have a work schedule of no
less time than that of the position held before the change; and
(6) The offered position must be in the same commuting area as
the employee's position immediately before the offer, unless the
employee is subject to a mobility agreement or a published agency
policy which requires employee mobility.
(5) In view of this determination that the proposal conflicts with a
Government-wide rule or regulation, we find that section 7106(b)(2) and
(3) of the Statute is not applicable. See American Federation of State,
County and Municipal Employees, Local 2830, AFL-CIO and Department of
Justice, 21 FLRA No. 121 (1986); American Federation of Government
Employees, Local 1546 and Department of the Army, Sharpe Army Depot,
Lathrop, California, 19 FLRA No. 118 (1985), petition for review filed
sub nom. American Federation of Government Employees, Local 1546 v.
FLRA, No. 85-1689 (D.C. Cir. Oct. 21, 1985).