Federal Union of Scientists and Engineers, NAGE Local R1-144 and Naval Underwater Systems Center (Authority decision, October 31, 1986)

Final FLRA decision. The Authority dismisses the union's negotiability petition. An aggrieved person may seek judicial review of this final Authority order in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

The union proposed treating its officers and stewards as the most senior employees in their competitive level and tenure group during a reduction in force. The Authority held that the proposal would force the Navy to remove other employees first, interfering with its statutory removal right. It also conflicted with governmentwide regulations that set the factors for retention standing. The Authority dismissed the negotiability petition.

Decision snapshot

• Authority: Management removal right under 5 U.S.C. § 7106(a)(2)(A) and federal reduction in force rules.
• Outcome: Proposal found outside the duty to bargain; petition dismissed.
• Key point: Union office could not replace the required retention factors with automatic seniority during a reduction in force.

Full text (FLRA public release)

[ v23 p804 ]

23:0804(103)NG

The decision of the Authority follows:

23 FLRA No. 103

FEDERAL UNION OF SCIENTISTS AND
ENGINEERS, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES, LOCAL R1-144
Union

and

U.S. DEPARTMENT OF NAVY, NAVAL
UNDERWATER SYSTEMS CENTER
Agency

Case No. 0-NG-1267

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

The petition for review in this case comes before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute. It raises an issue concerning the negotiability of one Union Proposal to grant "super seniority" to Union officials and stewards in a reduction-in-force. For the following reasons we hold that the proposal is nonnegotiable.

II. Union Proposal

Union officials and stewards shall for the purposes of reduction-in-force during their official tenure of office be considered the most senior employees in their competitive level and tenure status.

III. Positions of the Parties

The Agency contends that this proposal conflicts with management's right under section 7106(a)(2)(A) to remove employees in that it would compel the Agency to remove other employees before removing union officials and stewards in a reduction-in-force (RIF). Additionally, it argues that the proposal is inconsistent with a Government-wide rule or regulation -- specifically, the Office of Personnel Management (OPM) regulations found at 5 CFR Part 351.

The Union disputes the Agency's assertion that this proposal is nonnegotiable. It asserts that there is no Agency regulation for which a compelling need exists which bars negotiation of this proposal. /1/

IV. Analysis and Conclusions

A. The Proposal Conflicts with a Management Right

This proposal would require that, in a RIF, the Agency consider union officials and stewards to be senior to all other employees who are in the same competitive level and have the same tenure status. Absent any contrary statement by the Union, we interpret the terms "competitive level" and "tenure status" in this proposal as having the same respective meanings ascribed to the terms "competitive level" and "tenure group" in the OPM regulations governing RIF's. /2/ "Competitive level" is a grouping of positions based on their similarity. Employees are placed in a "tenure group" based on the nature of their appointment, for example, career, career-conditional, or indefinite. In American Federation of Government Employees, Local 2612, AFL-CIO and Department of the Air Force, Headquarters, 416th Combat Support Group (SAC), Griffiss Air Force Base, New York, 19 FLRA No. 117 (1985) (Union Proposal 2), the Authority held nonnegotiable a proposal requiring union officers and stewards to be the last employees in a given job classificaation to be removed in the event of a RIF. The Authority reasoned that the proposal would violate the agency's right to remove employees under section 7106(a)(2)(A) by compelling first removal of employees who were not union officials and stewards. This proposal is to the same effect. In a RIF action it would, similarly to the proposal in Griffiss AFB, compel the Agency to remove other employees in a given competitive level and tenure group prior to removing Union officers and stewards. For the reasons stated in Griffiss AFB and the cases cited in that decision, the Authority finds that this proposal directly interferes with the Agency's right under section 7106(a)(2)(A) to remove employees.

B. The Proposal Conflicts with a Government-wide Rule or

Regulation

The OPM RIF regulations prescribe several specific criteria by which employees must be ranked for purposes of determining their relative retention standing within a competitive level. 5 CFR Sections 351.501-351.506 (1986). Under those regulations an employee's retention standing is determined by the combination of tenure group, subgroup (veterans preference status), length of service and annual performance ratings. Because the proposal would award greatest seniority within a tenure group to Union officials and stewards, based on their union office, it is inconsistent with these regulations. National Treasury Employees Union, NTEU Chapter 202 and Department of the Treasury, Bureau of Government Financial Operations, 22 FLRA No. 58 (1986). The proposal is, therefore, not within the duty to bargain.

V. Order

Pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed.

Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

(1) The Agency does not assert before us that negotiations on the proposal are barred by an Agency regulation. Therefore, we need not further address this Union claim.

(2) 5 CFR Part 351 and FPM Letter 351-20, subchapter 3.