[ v18 p418 ]
18:0418(58)NG
The decision of the Authority follows:
18 FLRA No. 58
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 12
Union
and
DEPARTMENT OF LABOR
Agency
Case No. 0-NG-494
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Federal Labor
Relations Authority (the Authority) pursuant to Section 7105(a)(2)(E) of
the Federal Service Labor-Management Relations Statute (the Statute) and
presents issues concerning the negotiability of eight Union proposals
concerning reduction-in-force (RIF) matters which arose during mid-term
bargaining. Upon careful consideration of the entire record, /1/
including the parties' contentions, the Authority makes the following
determinations. /2/
Union Proposal 1
1.01 EARLY RETIREMENT. Before announcing RIF's, the Department
shall implement a program of early retirement and will meet
individually with employees eligible for optional or involuntary
retirement to explain its benefits.
In agreement with the Agency, the Authority concludes that this
proposal requiring the Agency to implement an early retirement program
when a RIF is contemplated is inconsistent with Federal law. Thus, it
is outside the duty to bargain under section 7117(a)(1) of the Statute.
That is, the authorization for employees to apply for early retirement
when their agency is undergoing a RIF is established by 5 U.S.C.
8336(d). /3/ This section, and its relevant legislative history,
clearly establish that before an eligible employee may apply for early
retirement the Office of Personnel Management (OPM) must approve the use
of this special retirement authorization by determining that the agency
is undergoing a major RIF. /4/ Consequently, as the proposal would
mandate that the Agency implement an early retirement program without
the prior approval of OPM, it is inconsistent with Federal law and not
within the duty to bargain. /5/
Union Proposal 2
1.02 PERSONNEL ACTIONS. Before taking RIF action, the
Department will utilize to the fullest extent various techniques
to avoid a RIF or to reduce the impact by attrition, including:
Freezing vacancies;
Identifying continuing positions for which the Department faces
shortages and reassigning career employees to vacant, continuing
jobs unit-wide;
Hiring only temporary personnel to fill vacancies created by
reassignment where the work is temporary;
Using voluntary overtime, when possible, to avoid increasing
the permanent workforce;
Training employees to prepare for reassignment to available
vacant positions;
Freezing Schedule C positions at the October 1, 1980 level.
Union Proposal 2 would require the Agency to take certain specified
personnel actions before conducting a RIF. However, the personnel
actions involved entail the exercise of various rights reserved to
management pursuant to section 7106(a) of the Statute or matters which
are negotiable only at management's election pursuant to section 7106(b)
of the Statute.
It is well established that pursuant to section 7106(a)(2)(A) of the
Statute the right to assign an employee to a position includes the
discretion to determine which employees will be assigned. See American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980),
affirmed sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C.
Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).
Thus, a proposal which divests management of its discretion to assign
employees is inconsistent with section 7106(a)(2)(A) of the Statute and
is nonnegotiable. American Federation of Government Employees, AFL-CIO,
Local 3529 and Defense Contract Audit Agency, 3 FLRA 301 (1980). In
this connection, the portion of Proposal 2 which mandates that
management reassign career employees to certain vacant positions
effectively determines which employee will be assigned and is
inconsistent with management's reserved right to assign employees.
Similarly, the portion of the proposal which requires management to hire
only temporary personnel to fill certain vacancies where the work is
temporary prohibits management from accomplishing the temporary work by
detailing or reassigning current employees in derogation of its reserved
right to assign employees. This portion of the proposal also requires
management to exercise its right to "hire" pursuant to section
7106(a)(2)(A) in a specified manner. In this regard, the right to take
actions pursuant to section 7106(a) of the Statute includes the right to
decide not to take such actions. These portions of the proposal,
however, obligate management to exercise its reserved rights to "hire"
and "assign" employees. Thus, for this additional reason, they are
outside the duty to bargain. See National Treasury Employees Union and
Internal Revenue Service, 2 FLRA 281 (1979) at 283.
It is also well established that the right "to assign work" pursuant
to section 7106(a)(2)(B) of the Statute includes the right to determine
the particular duties which will be assigned, /6/ the particular
employee to whom or position to which the work will be assigned /7/ and
when work assignments will be accomplished. /8/
In this respect, the portion of Proposal 2 which would obligate
management to assign work in an overtime status in lieu of increasing
the permanent work force involves a determination as to when the work
will be accomplished as well as of the particular individuals who will
be assigned to perform it and is, therefore, inconsistent with
management's right to assign work. See, e.g., American Federation of
Government Employees, AFL-CIO, National Joint Council of Food Inspection
Locals and Department of Agriculture, Food Safety and Quality Service,
Washington, D.C., 9 FLRA 663 (1980) at 664.
Those portions of the proposal which would require the Agency to
freeze certain vacancies, i.e., to refrain from filling vacant
positions, bear no material difference from the proposal which the
Authority held outside the duty to bargain in National Federation of
Federal Employees (NFFE) Local 1332 and Headquarters, U.S. Army Materiel
Development and Readiness Command, Alexandria, Virginia, 3 FLRA 611
(1980). In that case, the Authority determined that the proposed freeze
on hiring from outside sources until personnel actions under the RIF
were completed concerned a matter negotiable only at the election of the
Agency since it was directly and integrally related to the statutory
right of management to determine "numbers, types, and grades of
employees" assigned pursuant to section 7106(b)(1) of the Statute.
Thus, for the reasons fully set forth in U.S. Army Materiel Development
and Readiness Command, those portions of Proposal 2 which would require
the Agency to freeze vacancies must be held to be negotiable only at the
election of the Agency. Since the Agency has elected not to negotiate
on this matter, these portions of the proposal are not within the duty
to bargain.
Finally, that portion of the proposal which requires management to
train employees for available vacant positions concerns both the
assignment of work pursuant to section 7106(a)(2)(B) of the Statute and
a determination of the "numbers, types, and grades of employees"
assigned pursuant to section 7106(b)(1) of the Statute. Specifically,
to the extent this portion of the proposal presumes that management will
fill vacant positions it is integrally related to the statutory right to
determine "numbers, types, and grades of employees assigned" which is a
matter negotiable only at the election of the Agency. See, e.g.,
National Federation of Federal Employees, Local 1650 and U.S. Forest
Service, Angeles National Forest, 12 FLRA 611 (1983) (Union Proposal 2).
In addition, to the extent this portion of the proposal would require
the Agency to assign training to employees to enable them to prepare for
reassignment to available vacant positions, it involves the assignment
of work pursuant to section 7106(a)(2)(B) of the Statute. American
Federation of Government Employees, AFL-CIO, Local 1923 and Department
of Health and Human Services, Social Security Administration, 9 FLRA 899
(1982).
Consequently, by conditioning management's right to "layoff" /9/
pursuant to section 7106(a)(2)(A) of the Statute on the prior exercise
of other management rights in a prescribed manner, the proposal
interferes with these rights individually and collectively. See
American Federation of Government Employees, AFL-CIO, Local 3004 and
Department of the Air Force, Otis Air Force Base, Massachusetts, 9 FLRA
723 (1982). Therefore, the proposal is inconsistent with section
7106(a)(2)(A) of the Statute and is outside the duty to bargain. /10/
Union Proposal 3
1.03 LEAVE WITHOUT PAY. Employees wishing to take extended
LWOP will be encouraged to do so. Upon returning to work, the
employees may return to the job they left or to a similar job.
Their job may be filled during the LWOP.
To the extent that this proposal would obligate the Agency to grant
an employee's request for leave without pay (LWOP) without regard to the
necessity for the employee's services during the period covered by the
request it is inconsistent with management's right, pursuant to section
7106(a)(2)(B), to assign work. In this regard, the Authority noted, in
National Treasury Employees Union and Department of the Treasury, Bureau
of the Public Debt, 3 FLRA 769, 775 (1980), affirmed sub nom. National
Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982), that
the right "to assign work" pursuant to section 7106(a)(2)(B) of the
Statute "includes the right to assign general continuing duties, to make
specific periodic work assignments to employees, to determine when such
assignments will occur and to determine when the work which has been
assigned will be performed." To the extent that Proposal 3 would have
the effect of removing management's discretion to deny LWOP it would
effectively nullify the Agency's ability to determine when assigned work
will be performed and, thus, violates management's right pursuant to
section 7106(a)(2)(B) of the Statute "to assign work." See American
Federation of Government Employees, AFL-CIO, Local 2263 and Department
of the Air Force, Headquarters, 1606th Air Base Wing (MAC), Kirtland Air
Force Base, New Mexico, 15 FLRA No. 126 (1984) (Proposal 4).
Union Proposal 4
1.04 JOB SHARING PLANS. Before the RIF is conducted,
management shall make job sharing proposals to Local 12. As a
part of these proposals, management shall consider DOL's
experiment now underway in California.
The Authority concludes that Proposal 4 improperly would place a
substantive condition (offering job sharing proposals) upon the Agency's
ability to conduct a RIF. Hence, this proposal directly interferes with
the Agency's right to "layoff" employees pursuant to section
7106(a)(2)(A) of the Statute. Furthermore, the substance of the
condition prescribed in the proposal concerns the number of employees
assigned to an organizational subdivision, work project, or tour of duty
which is a matter negotiable only at the election of the Agency pursuant
to section 7106(b)(1) of the Statute. Specifically in this respect,
this proposal essentially would require management, as a precondition to
exercising its statutory right to layoff employees, to propose and
negotiate over utilizing two or more part-time employees to perform a
job that was previously performed by one full-time employee. Thus, by
its express terms, the proposal falls within the scope of section
7106(b)(1) of the Statute. /11/ Consequently, as Proposal 4 directly
interferes with management's right to "layoff" pursuant to section
7106(a)(2)(A) of the Statute it is outside the duty to bargain.
Union Proposal 5
1.05 EMPLOYMENT LEVEL. Employment levels will not be reduced
through RIF below the current Congressional authorized ceiling.
This proposal expressly would prohibit the Agency from conducting a
RIF to reduce its employment level, i.e., the actual number of
employees, unless such employment level exceeded its current, authorized
ceiling. In this regard, however, an agency has a right to layoff
employees and therefore may seek to reduce employment levels for reasons
such as a lack of work, a shortage of funds or as a result of a
reorganization. See 5 CFR 351.201 (1984 Supp.). Thus, as this proposal
would place substantive limits on management's right to "layoff"
employees pursuant to section 7106(a)(2)(A) of the Statute it is not
within the duty to bargain. /12/
Union Proposal 6
1.06 CONTRACTS. Management shall immediately freeze and
suspend all consulting and contracting-out services and shall
continue such suspension while providing a complete list of
consultants and service contracting-out from October 1, 1980 to
the present; management shall provide Local 12 information
demonstrating compliance with Article 19 and shall demonstrate
compliance with revised OMB Circular A-76, particularly the 60-day
notice provision, when a threshold for capital investment or
operating costs will be exceeded by proposed expansion,
modernization or upgrade.
Proposal 6, like the other proposals in this case, was proffered in
the context of mid-term negotiations wherein the Union sought to
negotiate various restrictions on the Agency's right to conduct a RIF,
i.e., to layoff employees. There is no indication in the record herein
that the freeze and suspension of all contracting out and consulting
services required by the proposal was intended as a temporary measure
only to last until the Agency furnished the information described in the
proposal to the Union. Rather, this proposal, in the context of
negotiations in which it was proposed, is susceptible to the
interpretation that it was intended to place limitations on the Agency's
ability to conduct a RIF. Therefore, in this regard, the Authority
concludes that Proposal 6, like Proposals 2 and 4 above, also improperly
would establish a substantive condition (freezing consulting and
contracting out determinations) upon the Agency's right to "layoff"
pursuant to section 7106(a)(2)(A) of the Statute. Furthermore, the
condition prescribed in Proposal 6, namely, freezing and suspending all
contracting out, itself, directly interferes with the exercise of
management's right to make determinations with respect to contracting
out. See National Federation of Federal Employees, Local 1167 and
Department of the Air Force, Headquarters, 31st Combat Support Group
(TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981) (Proposal
1), affirmed sub nom. National Federation of Federal Employees, Local
1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). Thus, Proposal 6 herein
would directly interfere with these management rights, individually and
collectively, by conditioning the exercise of one upon the exercise of
the other in the prescribed manner. Proposal 6, consequently, is
inconsistent with section 7106(a)(2)(A) of the Statute and outside the
duty to bargain.
Union Proposal 7
2.03 DETAILS. For each person placed on detail, evidence will
be furnished the Union that these people have position
descriptions, bona fide personnel papers, noting the beginning and
ending dates of the detail, and the performance criteria for the
job.
The Agency contends that Proposal 7 concerns matters relating to
details which are covered by the parties' agreement and that management
was proposing no mid-term changes which "go beyond the scope of the
agreement." In this regard, and as previously stated in this decision,
(note 2, supra), the Authority will decide only the negotiability issues
presented under section 7105(a)(2)(E). Further, to the extent that
there are factual issues in dispute between the parties concerning the
duty to bargain, in the specific circumstances of this case, such issues
should be raised in other appropriate proceedings. Therefore, since the
Agency has made no claim that this proposal is inconsistent with law,
rule or regulation, and no such inconsistency is otherwise apparent, the
proposal is within the duty to bargain. /13/
Union Proposal 8
2.04 RATIO. An equal portion of supervisory and
non-supervisory positions will be abolished, and the
employee-supervisory ratio before the RIF will be maintained
during and following the RIF consistent with Secretary Notice
17-65, as amended.
The Authority concludes that Proposal 8 directly interferes with
management's right to "layoff" employees, pursuant to section
7106(a)(2)(A) of the Statute. Specifically, this proposal would have
the effect of determining the particular positions management would be
obligated to abolish in a given RIF. That is, once management decided
to abolish a number of employee positions it would then be obligated
under this proposal to abolish a proportionate number of supervisory
positions. Thus, by compelling the abolishment of particular positions
the proposal directly interferes with the Agency's discretion to
determine which positions will be abolished and which employees to
layoff pursuant to section 7106(a)(2)(A) of the Statute. Consequently,
the proposal is not within the duty to bargain. See National Treasury
Employees Union and Internal Revenue Service, 7 FLRA 275 (1981)
(Proposal 5).
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 7.
IT IS FURTHER ORDERED that the petition for review as it relates to
Union Proposals 1, 2, 3, 4, 5, 6 and 8, be, and it hereby is, dismissed.
Issued, Washington, D.C., June 13, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Union did not file a Reply Brief in this case.
/2/ The Agency contends that certain proposals or portions of them
are outside the duty to bargain because they concern matters addressed
in Agency regulations in existence at the time the parties' contract was
negotiated, covered by provisions in the parties' contract, and/or
matters which are unrelated to the changes in conditions of employment
proposed by the Agency. In this regard, the Authority decides only the
negotiability issues presented under section 7105(a)(2)(E) of the
Statute. To the extent that there are factual issues in dispute between
the parties concerning the duty to bargain in the specific circumstances
of this case, such issues should be raised in other appropriate
proceedings. American Federation of Government Employees, AFL-CIO,
Local 2736 and Department of the Air Force, Headquarters, 379th Combat
Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302
(1984).
/3/ 5 U.S.C. 8336(d) provides, in pertinent part:
(d) An employee who--
* * * *
(2) while serving in a geographic area designated by the Office
of Personnel Management, is separated from the service voluntarily
during a period in which the Office determines that--
(A) the agency in which the employee is serving is undergoing a
major reorganization, a major reduction in force, or a major
transfer of function; and
(B) a significant percent of the employees serving in such
agency will be separated or subject to an immediate reduction in
the rate of basic pay (without regard to subchapter VI of chapter
53 of this title or comparable provisions);
after completing 25 years of service or after becoming 50 years
of age and completing 20 years of service is entitled to an
annuity.
/4/ S. REP. No. 95-969, 95th Cong. 2d Sess, 1531, reprinted in (1978)
U.S. CODE CONG. & AD. NEWS 2723, 2789.
/5/ In view of this decision, the Authority finds it necessary to
reach the Agency's contention that the proposal conflicts with a
Government-wide rule or regulation.
/6/ Wright-Patterson Air Force Base, 2 FLRA 604 (1980) at 621.
/7/ Id. at 631.
/8/ National Labor Relations Board Union, Local 19 and National Labor
Relations Board, Region 19, 2 FLRA 775 (1980).
/9/ See 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) (Union
Proposal 2), appealed on other grounds sub nom. Association of Civilian
Technicians, Montana Air Chapter v. FLRA, No. 83-1489 (D.C. Cir. March
8, 1985).
/10/ In view of the Authority's decision concerning Union Proposal 2,
it is unnecessary to address the Agency's other arguments as to the
nonnegotiability of various portions of the proposal.
/11/ See American Federation of Government Employees, Local 3669,
AFL-CIO and Veterans Administration Medical Center, Minneapolis,
Minnesota, 2 FLRA 641 (1980).
/12/ In view of this conclusion, the Authority finds it unnecessary
to address the Agency's contention regarding section 7106(a)(1) of the
Statute.
/13/ In deciding that Union Proposal 7 is within the duty to bargain,
the Authority makes no judgment as to its merits.