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50 FLRA No. 89

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3673

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVAL AIR WARFARE CENTER

TRENTON, NEW JERSEY

(Agency)

0-NG-2193

(49 FLRA 1575 (1994))

_____

ORDER GRANTING MOTION FOR RECONSIDERATION AND DISMISSING PETITION FOR REVIEW

July 31, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This case is before the Authority on the Agency's motion for reconsideration of the Authority's decision and order in 49 FLRA 1575 (1994), in which several Union proposals were found negotiable. The Union did not file an opposition to the Agency's motion.

For the following reasons, we conclude that extraordinary circumstances exist under section 2429.17 of the Authority's Regulations to grant reconsideration of the Authority's decision. Upon reconsideration, we find that the proposals are nonnegotiable because they are inconsistent with a Government-wide regulation. Accordingly, we dismiss the petition for review.⁽¹⁾

II. The Decision in 49 FLRA 1575

In 49 FLRA 1575, the Authority concluded that the Union's proposals, which sought to alter the Agency's method of identifying 32 positions for which a transfer of function was delayed, were negotiable.⁽²⁾ The Authority rejected the Agency's sole argument that the proposals were contrary to the transfer of function regulations contained in 5 C.F.R. Part 351, subpart C, and Federal Personnel Manual (FPM) Supplement 351-1, subchapter S10.⁽³⁾ The Authority found that those regulations did not apply because the 32 positions were being retained in their existing location. The Authority determined that nothing in the proposals was inconsistent with law, rule, or regulation, so as to render them nonnegotiable.

III. Motion for Reconsideration

The Agency contends that the Authority incorrectly determined that the transfer of function regulations were not applicable. The Agency asserts that, although the proposals pertain to the positions that will be retained in their present location, the process of identifying which positions and employees occupying those positions will be retained is determinative of the process used to identify the positions and employees that will be relocated. The Agency now explains, among other things, that some of the 32 positions that will not be transferred will be created by combining duties that are currently performed by more than one employee, some of whom are in positions that will be transferred. Additionally, for the first time, the Agency contends that, under certain situations, the proposals could displace employees who are not affected by the transfer of function, arguably in violation of law and regulation.

IV. Analysis and Conclusions

A. Grounds for Granting Reconsideration

Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration after the Authority has issued a final decision bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, AFL-CIO, SEIU, 50 FLRA 84 (1995). Extraordinary circumstances have been found based on, for example, factual error. Marine Corps Logistics Base, Barstow, California and American Federation of Government Employees, Local 1482, 32 FLRA 638, 641 (1988) (parties' mistake regarding critical fact was determinative of legality of award). In this case, the Authority's conclusion that the transfer of function regulations did not apply was based on its interpretation of the facts presented, principally by the Agency in its statement of position.⁽⁴⁾ As is discussed in the next section of this decision, the Agency has now established that this factual interpretation was erroneous. Accordingly, we grant the Agency's motion to reconsider the decision in 49 FLRA 1575.

B. Applicability of Transfer of Function Regulations

By their terms, the transfer of function regulations apply when "the work of one or more employees is moved from one competitive area to another . . . ." 5 C.F.R. § 351.301(a) (emphasis added). Under 5 C.F.R. § 351.303, there are two methods for identifying employees who may transfer with a function. The methods differ based on the amount of work time that an employee spends performing the duties of the transferring function.⁽⁵⁾

In its initial submission to the Authority, the Agency stated that a decision had been made to "delay the move of 32 engineers" whose positions were "tied to" their existing location. Statement of Position at 1. Based on that statement, we found that there was no transfer of function with respect to those positions because it did not appear that the work performed by employees in those positions would cease to be performed in their current location and reappear in an identifiable form in another location. Our conclusion was based on an assumption that the 32 positions were occupied by 32 employees and that their work would remain intact. However, as the Agency now explains, and the Union does not dispute, employees whose positions are not transferring at this time also perform the work of positions that are scheduled for transfer. As a result, a transfer of function is, in fact, occurring with respect to some of the remaining positions and the transfer of function regulations apply in determining the identity of the employees who will occupy those positions.⁽⁶⁾ Consequently, our finding in 49 FLRA 1575 that the transfer of function regulations did not apply was in error.

C. Negotiability of Union's Proposals

In 49 FLRA 1575, we did not address whether the Union's proposals are inconsistent with the transfer of function regulations. We now conclude that they are.

Under 5 C.F.R. § 351.303, the agency component losing a function is required to identify "the positions of competing employees with the transferring function." 5 C.F.R. § 351.303(a). As explained above, that provision establishes two methods for identifying those employees who may transfer with the function. Identification Method Two, which applies to employees who perform transferring functions during less than half of their work time, requires the establishment of a retention register. Only employees who currently perform at least some of the work of the transferring function may be placed on that retention register.

The Union's proposals would expand the pool of employees included on the retention register to include employees not currently performing the duties of the functions scheduled for transfer. Inclusion of such employees on the retention register is inconsistent with the transfer of function regulations. The Authority previously has determined that reduction-in-force regulations, set forth at 5 C.F.R. Part 351, which include the transfer of function regulations, are Government-wide regulations within the meaning of section 7117(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute). National Treasury Employees Union, NTEU Chapter 202 and Department of the Treasury, Bureau of Government Financial Operations, 22 FLRA 553, 555 (1986). Therefore, the proposals are inconsistent with Government-wide regulations and are nonnegotiable under section 7117(a)(1) of the Statute. In light of this result, we do not address the Agency's additional contention.

V. Order

The petition for review is dismissed.

APPENDIX

 

Proposals

Proposal 1

Change "based on permanent job function (current) and PD's" to "based on permanent job functions and PD's."

Proposal 2

Add to "generally recognized as the people currently performing the function," the following: "previously having performed the function, or capable of being trained and/or certified to perform the function."

Proposal 3

Change "no down grades" to "down grades permitted."

Proposal 4

Change "pool of currently qualified people" to "pool of eligible people."

PROCESS FOR IDENTIFYING THE 32 PROPULSION ENGINEERING

POSITIONS TO DELAY THEIR TRANSFER OF FUNCTION BEYOND

30 OCTOBER 1994

1. DIVISION SUPERVISORS IDENTIFY FUNCTIONAL AREAS AND NUMBER OF PEOPLE, BY DIVISION, NEEDED TO REMAIN AT TRENTON. The people selected will provide on-site project engineering support to projects conducted in the test facilities still active at Trenton. The people will remain in these functions until the facilities are transferred, workload reduces to the extent people are not needed, or more pressing need at Pax dictated their transfer to Pax. Official notice will be given for the subsequent transfer of the function to Pax.

2. CDR (Sel) Williamson will review process with the AFGE union.
-Process description forwarded to HRO for official submittal to the union.
-HRO officially inform the union of this process.

3. Division supervisors identify pool of people within each area
-Based on FPM Supplement 351[-]1 Subchapter S10, Transfer of Function
-Based on permanent job function (current) and PD's
-Generally recognized as the people currently performing the function
-No down grades

4. Division supervisors brief division on functional areas and pools.

5. Division supervisors interview each person for interest in being considered for one of the 32 billets to have a delayed transfer of function:
-Each person to indicate YES or NO, initial, and date

6. PE2 supervisors provide the list(s) to PE2. PE3 supervisors provide the list(s) to PE2 via PE3.

7. PE2 provides a memo to HRO including:
-Functional areas and pool (will include description of function, applicable PD(s), pool of currently qualified people to perform the function, and each persons [sic] PD)
-Indication of Interest (list of YES/NO's with initials)
-statement of requirement for selecting 32 people to delay their transfer of function to PAX

8. HRO calculates appropriate retention register by functional area pool.

9. HRO selects 32 people to fill the 32 billets for delayed transfer using the following criteria:
1) By retention register order
2) By preference based on the YES/NO list
(i.e. if first person on the list has indicated interest in delaying the transfer (YES), he/she will be assigned one of the 32 billets. If the first person on the list has indicated no interest in delaying their transfer (NO), that person will be skipped and the next person on the list will be considered for selection).

10. HRO rescinds Transfer of Function letters to 32 people selected.

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

1. The Agency requested that the Authority conduct a hearing in this matter. The Authority made several attempts to hold a conference with the parties but was unable to obtain a commitment from the Union to appear. Accordingly, we decide this case based solely on the parties' submissions.

2. The proposals, as well as an Agency memorandum that the proposals sought to modify, are set forth in the Appendix to this decision.

3. The FPM was abolished, in full, on December 31, 1994, after the Authority rendered its decision. Effective January 13, 1995, portions of 5 C.F.R. Part 351 were amended to add certain matters contained in the FPM. See 60 Fed. Reg. 3055 (1995). Certain of the amendments relate to transfers of function. Specifically, amendments were made to portions of the regulations that cover: the timing of a separation of an employee who declines to transfer; the use of a canvass letter to ascertain employee interest in transferring; the use of an employee's official position to identify competing employees; and the factors to be considered in determining the amount of time an employee performs a function in the employee's official position. It is not argued or apparent that these amendments are relevant to the disposition of this case. Accordingly, we do not address them further.

4. As noted in the Authority's initial decision, the Union did not file a response to the Agency's statement of position.

5. 5 C.F.R. § 351.303 states, in relevant part, the following:

(c) Under Identification Method One, a competing employee is identified with a transferring function if--

(1) The employee performs the function during at least half of his or her work time; or

(2) Regardless of the amount of time the employee performs the function during his or her work time, the function performed by the employee includes the duties controlling his or her grade or rate of pay.

. . . .

(d) Identification Method Two is applicable to employees who perform the function during less than half of their work time and are not otherwise covered by Identification Method One. Under Identification Method Two, the losing competitive area must identify the number of positions it needed to perform the transferring function. To determine which employees are identified for transfer, the losing competitive area must establish a retention register in accordance with this part that includes the name of each competing employee who performed the function. Competing employees listed on the retention register are identified for transfer in the inverse order of their retention standing. . . .

6. It is clear from the record that the work of at least 12 of the 32 positions and employees occupying those positions is being transferred at this time.

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