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54 FLRA No. 30

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-45

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEFENSE COMMISSARY AGENCY

CENTRAL REGION

VIRGINIA BEACH, VIRGINIA

(Agency)

0-NG-2357

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R14-23

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEFENSE COMMISSARY AGENCY, HEADQUARTERS

MIDWEST REGION

KELLY AIR FORCE BASE, TEXAS

(Agency)

0-NG-2405

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

May 29, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

These cases are before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). Each appeal concerns the negotiability of an identical proposal regarding the reassignment of bargaining unit employees prior to the Agency issuing a reduction in force (RIF) notice. In both cases, the Agency filed a statement of position; the Union filed responses to both of the Agency's statements of position.

For the reasons that follow, we conclude that the proposals are within the duty to bargain.

II. Consolidation of Cases

The petitions for review in Case No. 0-NG-2357 (Central Region case) and Case No. 0-NG-2405 (Midwest Region case), involve the same parties, the same proposal, and present substantially similar negotiability issues. In addition, the Agency has requested the Authority to consolidate the cases and the Union has not opposed that request. Accordingly, we have consolidated the cases for consideration. See International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 830, 831 (1996).

III. The Proposal

At least thirty (30) days prior to issuance of RIF Notices, bargaining unit employees with the lowest retention standing for their competitive level in the bargaining unit will be reassigned to the RIF affected bargaining unit location, reassigning the higher retention standing unit employee(s) to non-RIF affected unit location.

IV. Positions of the Parties

A. Agency

In both cases, the Agency asserts that the Union's proposal is outside the duty to bargain on two grounds.

First, the Agency contends that the proposal interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. According to the Agency, "the right to assign employees includes the discretion to determine which employee will be reassigned[.]" Central Region Statement of Position at 2. See also Midwest Region Statement of Position at 3. In this regard, the Agency claims that the proposal would require it to either assign bargaining unit employees based solely on their "retention standing"⁽¹⁾ or seniority, which could require the Agency to make determinations regarding "selection based on criteria not wholly related to the job to be filled." Id. See also Midwest Region Statement of Position at 2-3.

Second, the Agency claims that the proposal interferes with management's right to select employees from any appropriate source under section 7106(a)(2)(C)(ii) of the Statute. According to the Agency, the proposal would require it to fill positions in the RIF location from a single source--bargaining unit employees with the lowest retention standing. The Agency argues that the proposal would "deprive the Agency of its authority to determine which employees are qualified to perform the work should the [A]gency decide to fill vacancies." Central Region Statement of Position at 2. See also Midwest Region Statement of Position at 4.

With respect to these management rights, the Agency asserts that the proposal does not constitute an appropriate arrangement under section 7106(b)(3). Specifically, the Agency argues that the proposal "applies to all unit employees, and is not 'tailored' to compensate or benefit those employees who are actually adversely affected by the exercise of a management right." Id. at 3. See also Midwest Region Statement of Position at 4.

In addition, in the Central Region case, the Agency contends that the proposal is outside the duty to bargain because it is inconsistent with 5 C.F.R. § 351.501. The Agency argues that because section 351.501 "require[s] that tenure of employment, veteran's preference, length of service, and performance rating also be considered in determining whether an employee is entitled to a position during a RIF[,]" the proposal, which requires reassignment based solely on the lowest retention standing, is inconsistent with that section. Central Region Statement of Position at 2.

Finally, in the Midwest Region case, the Agency contends that the proposal is outside the duty to bargain because it is inconsistent with 5 C.F.R. § 351.402.⁽²⁾ According to the Agency, section 351.402(b) requires that a competitive area include both unit and nonunit employees and, therefore, the proposal, which applies only to unit employees, is inconsistent with that section. The Agency also argues that the proposal is inconsistent with the regulation because "it would affect retention privileges of bargaining unit employees based on labor representation considerations." Midwest Region Statement of Position at 2.

B. Union

The Union claims that the proposal does not interfere with management's right to either assign employees under section 7106(a)(2)(A) or select employees from any appropriate source under section 7106(a)(2)(C)(ii). The Union claims that the proposal would only require that the Agency "swap" employees--who perform identical duties, are within the same competitive level, and have already been determined by the Agency to be qualified for their positions--from one bargaining unit location to another. Central Region and Midwest Region Response at 6. The Union claims that the proposal is similar to proposals involving the criteria for determining whether to grant requests of employees to switch from one shift to another, which the Authority has found within the duty to bargain because "the employees [are], in effect, interchangeable." Id.

The Union claims, in the alternative, that even if the proposal conflicts with a management right, it constitutes a procedure and an appropriate arrangement under section 7106(b)(2) and (3) of the Statute.

In addition, in the Central Region case, the Union claims that the proposal is consistent with section 351.501 because the procedure set forth in the proposal is effected prior to conducting a RIF. The Union also contends that, even if the RIF regulations were applicable at the point the proposal is intended to take effect, the proposal is consistent with section 351.501 because it applies the rules set forth in that section.

Finally, in the Midwest Region case, the Union argues that the proposal does not affect the Agency's determination of the competitive area when conducting a RIF and, therefore, is not inconsistent with 5 C.F.R. § 351.402. According to the Union, the proposal only affects the movement of unit employees prior to a RIF, and is not intended to affect the status of nonunit employees or unit employees when the RIF ultimately occurs.

V. Meaning of the Proposal ⁽³⁾

As plainly worded, the proposal would require the Agency to reassign employees to locations within the bargaining unit, based on the employees' "retention standing" prior to issuing a RIF notice. The locations to which reassignments would be made depend on Agency decisions about locations that would be affected by a RIF. The Union states that the reference to "retention standing" is intended to incorporate the factors establishing retention standing set forth in 5 C.F.R. § 351.501. The Union also states that the proposal does not involve the filling of vacancies, and that the proposal only involves the "swap" of employees within the bargaining unit who are qualified and who occupy identical positions. The Union's explanations are consistent with the wording of the proposal and, therefore, we adopt them. See Laurel Bay, 51 FLRA at 737 (when a proposal is silent as to a particular matter, a union statement clarifying the matter is considered consistent with the proposal's plain wording so long as the statement otherwise comports with the proposal's wording).

In sum, consistent with the plain wording of the proposal and the Union's statements of intent, the proposal would require the Agency, prior to conducting a RIF, to place qualified bargaining unit employees with the lowest retention standing in the entire unit, as determined under 5 C.F.R. § 351.501, in identical affected positions at the location where the Agency intends to conduct the RIF. The effect of the proposal would be that employees in identical positions would be swapped from one unit location to another based on their retention standing.

VI. Analysis and Conclusions

A. The Proposal Does Not Interfere With Management's Right To Assign Employees Under Section 7106(a)(2)(A) of the Statute

The right to assign employees under section 7106(a)(2)(A) of the Statute includes the right to determine the qualifications and skills needed to perform the work of the position, including such job-related individual characteristics as judgement and reliability, and to determine whether employees meet those qualifications.⁽⁴⁾ The right to assign employees also includes the discretion to determine which employees will be assigned to particular positions.⁽⁵⁾ In addition, the Authority has determined that proposals requiring an agency to place an employee into a vacant position in another location at the election of the employee, without regard to whether the agency intends to fill that position, interferes with management's right to assign.⁽⁶⁾

However, the Authority has found that management's right to assign employees under 7106(a)(2)(A) of the Statute is not abridged by proposals involving only the decision as to the location where employees, who are assigned to positions and who management has already determined possess the required qualifications, will perform duties previously assigned to their positions. See ATF, 43 FLRA at 1458.⁽⁷⁾ For example, in National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA 508, 517 (1981) (IRS), which examined a proposal that required the agency to select employees for reassignments based on tenure of employment, the Authority held that because the proposal involved the reassignment of employees from one location to another without an accompanying change in the duties performed by the employees, it did not affect management's right to assign employees. The Authority noted that employees affected by the proposal had already been "chosen by the [a]gency to perform duties substantially similar to those required in the new assignments" and were essentially being moved to perform those duties in another location without any other change. Id.

The proposal at issue in this case, as described above, requires the Agency to reassign employees, based on their retention standing, from one bargaining unit location to another, where they will perform identical duties in an identical position. As such, the reassignment required by the proposal only involves the location in which an employee will perform the duties of his or her position. The proposal does not require the Agency to fill a position at another unit location at the election of the employee without regard to whether the Agency wants that position filled; the position at that location already exists and is occupied. Cf. ATF, 43 FLRA at 1458. Further, contrary to the Agency's assertion, the proposal does not require the Agency to make determinations regarding selection based on criteria that are not related to the position to which the employee will be reassigned. The proposal does not affect the Agency's right to determine whether the employee possesses the skills and qualifications needed to perform the duties of the position at the new location, because the Agency has already made that determination when it assigned the employee to the same position at another location. Cf. Overseas Education, 53 FLRA at 908. Additionally, the proposal does not impair the Agency's discretion to make a determination at any time that, based on its needs regarding a particular position, it is necessary to reassign a particular employee. Cf. Health Care Financing, 44 FLRA at 1490.

Thus, we conclude that the proposal, which involves only the reassignment of employees from one bargaining unit location to another without a change in the duties performed by the employee, does not affect management's right to assign employees under section 7106(a)(2)(A) of the Statute. See IRS, 6 FLRA at 517.

B. The Proposal Does Not Interfere With Management's Right To Select Employees From Any Appropriate Source Under Section 7106(a)(2)(C)(ii) of the Statute

The Authority has repeatedly held that proposals requiring management to fill vacancies from a single source directly interfere with management's right to select employees from any appropriate source. See International Federation of Professional and Technical Engineers, Local 3 and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 51 FLRA 451, 458-59 (1995) (proposal requiring the agency to fill a vacant position that was abolished by a RIF with a former incumbent of the position interferes with management's right to select employees from any appropriate source); Laurel Bay Teachers Association, OEA/NEA and U.S. Department of Defense, Stateside Dependents Schools, Laurel Bay Schools, Laurel Bay, South Carolina, 49 FLRA 679, 683 (1994) (proposal requiring the agency to permit reassigned employees to return to a former location if a position is vacant at that location interferes with management's right to select from any appropriate source).

Consistent with the plain wording of the proposal and the Union's explanation, the proposal does not relate in any way to the filling of vacancies. Rather, it requires the Agency to reassign existing employees to existing positions that are already occupied by an employee at a different bargaining unit location. As the proposal neither obligates management to fill, nor prevents management from filling, vacant positions, we conclude that the proposal does not interfere with management's right to select employees from any appropriate source under section 7106(a)(2)(C)(ii) of the Statute.

C. The Proposal Is Not Inconsistent With 5 C.F.R. § 351.501

The Agency argues that the proposal is inconsistent with 5 C.F.R. § 351.501 because it requires the "reassignment of bargaining unit employees prior to a RIF solely on the basis of lowest retention standing[.]" Central Region Statement of Position at 2. The Agency does not explain this allegation, and the basis for the contention is unclear. In particular, 5 C.F.R. § 351.501, which provides that employees' retention standing must be determined on the basis of their "tenure of employment, veteran preference, length of service, and performance" ratings, concerns retention standing following the issuance of a RIF notice and the proposal concerns actions taken prior to issuance of such notice. 5 C.F.R. § 351.501(a). However, even if we were to construe the Agency's argument as a claim that the proposal conflicts with the regulatory requirements regarding whether an employee is entitled to a position during a RIF, we have construed the proposal as incorporating 5 C.F.R. § 351.501 and, therefore, the proposal is not inconsistent with that section.

The Agency supports its contention with regard to 5 C.F.R. § 351.501 by citing to Laborers' International Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686 (1984) (Laborer's International). However, nothing in Laborer's International provides a basis for finding the proposal outside the duty to bargain. In Laborer's International, the Authority found that sections of a proposal were intended to govern RIF retention rights of employees because they required the agency, during a RIF, to offer vacant shifts to employees only on the basis of seniority. The Authority held that such sections were inconsistent with Office of Personnel Management "RIF regulations" because the proposal failed to consider all the requirements for retention standing set forth in the regulations.⁽⁸⁾ 14 FLRA at 688. In contrast, the proposal at issue here does not require the Agency to retain employees on a basis other than that set forth in section 351.501. In fact, consistent with that regulation and Laborer's International, the proposal does not affect the Agency's ability to retain or RIF employees on the basis of their retention standing as established pursuant to 5 C.F.R. § 351.501.

As the Agency has not asserted any other basis for its contention that the proposal is inconsistent with 5 C.F.R. § 351.501, we conclude that the proposal is not outside the duty to bargain on this ground.

D. The Proposal Is Not Inconsistent With 5 C.F.R. § 351.402

The Agency asserts that the proposal is inconsistent with 5 C.F.R. § 351.402, which sets forth the requirements for establishing a competitive area. However, the Agency's arguments in this regard are misplaced.

There is nothing in the plain wording of the proposal or the Union's explanation indicating that the proposal affects the Agency's determination as to appropriate competitive areas within the bargaining unit. The proposal requires action prior to the issuance of the RIF notice and places no constraints on the terms of that notice, including the competitive area. Specifically, the proposal, which makes no reference to competitive areas, requires the Agency to reassign employees who have the lowest retention standing in the bargaining unit to the RIF affected bargaining unit location prior to issuing a RIF notice. The Agency is free to determine what the competitive area is for the purposes of the RIF. Further, nothing in the proposal prevents the inclusion of both unit and nonunit employees in the competitive area as established by the Agency.

With regard to the Agency's assertion that the proposal will affect the "retention privileges of bargaining unit employees based on labor representation considerations[,]" we are unable to discern the basis for the Agency's argument because the Agency fails to explain this contention. Midwest Region Statement of Position at 2. Nothing in 5 C.F.R. § 351.402 involves either "retention privileges" or "labor representation considerations." Moreover, the assertion alone, without further elaboration, is not persuasive. There is nothing in the proposal, as construed above, that affects the factors upon which retention privileges are determined. Accordingly, we reject this argument.

As the Agency has not asserted any other basis for its contention that the proposal is inconsistent with 5 C.F.R. § 351.402, we conclude that the proposal is not outside the duty to bargain on this ground.

VII. Order

The Agency shall upon request, or as otherwise agreed to by the parties, bargain over the proposal.⁽⁹⁾

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

1. Under government-wide regulation, "retention standing" refers to the level at which an employee will be placed on a retention register when a RIF is conducted. In particular, when a RIF is conducted, employees are released in the inverse order of retention standing, beginning with the employee with the lowest retention standing on the retention register. Under 5 C.F.R. § 351.501(a), employees' retention standing must be determined on the basis of their "tenure of employment, veterans preference, length of service, and performance" ratings.

2. 5 C.F.R. § 351.402, entitled Competitive area, provides, in relevant part, that:

(a) Each agency shall establish competitive areas in which employees compete for retention under this part.

(b) A competitive area must be defined solely in terms of the agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so defined. A competitive area may consist of all or part of an agency. The minimum competitive area is a subdivision of the agency under separate administration within the local commuting area.

3. The meaning we adopt for a proposal in deciding a negotiability appeal would apply in resolving other disputes, such as arbitration proceedings, where construction of the proposal is at issue. See National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 741-42 n.8 (1996) (Laurel Bay).

4. See National Education Association, Overseas Education Association, Fort Bragg Association of Educators and U.S. Department of Defense, Department of Defense Domestic Dependents, Elementary and Secondary Schools, Fort Bragg, North Carolina, 53 FLRA 898, 908-09 (1997) (proposal requiring the agency to accept particular employees as satisfying an eligibility requirement for a specific level of career accomplishment interferes with management's right to assign employees) (Overseas Education).

5. See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1490 (1992) (proposal requiring the agency to return employees to their former positions where they fail to attain a satisfactory performance level in a latter position interferes with management's right to assign employees because it restricts the agency's ability to determine which employee will be assigned to the former position) (Health Care Financing).

6. See National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., 43 FLRA 1442, 1458 (1992) (proposal requiring the agency to grant a hardship transfer to another location if an employee wishes to retain its position after the agency determines to move an employee's job because of a transfer of functions interferes with management's right to assign employees) (ATF).

7. See also American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA 83, 86-87 (1981) (proposal requiring the selection of employees based on seniority for temporary assignments in different locations did not interfere with management's right to assign employees because the assignment only affected where the duties were performed and the employees selected already performed the same duties) (Patterson Air Force Base). Cf. American Federation of Government Employees, AFL-CIO, Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA 265, 270-71 (1990) (proposal requiring the agency during a relocation to make reassignments based on seniority to positions at a new location with new position descriptions and work, interferes with management's right to assign employees).

8. Although not specifically cited, the RIF regulations at issue in Laborer's International included the requirements now set forth in section 351.501.

9. In concluding that this proposal is within the duty to bargain, we make no judgment as to its merits.

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