National Federation of Federal Employees, Local 1332 (Union) and Headquarters, U.S. Army Materiel Development and Readiness Command, Alexandria, Virginia (Activity) (Authority decision, July 10, 1980)

Final FLRA decision. This negotiability order ends the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

A union proposed bargaining over a hiring freeze during a workforce realignment and a joint board to approve exceptions. The Authority found the proposal concerned the numbers and types of employees assigned to organizational subdivisions. The Army had declined to bargain, and that subject was negotiable only at the agency’s election. It sustained the agency’s nonnegotiability allegation.

Decision snapshot

• Authority: 5 U.S.C. § 7106(b)(1).
• Outcome: Agency nonnegotiability allegation sustained.
• Key point: The proposed staffing freeze required agency consent to bargain.

Full text (FLRA public release)

[ v03 p611 ]

03:0611(97)NG

The decision of the Authority follows:

3 FLRA No. 97

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES (NFFE), LOCAL 1332
Union

and

HEADQUARTERS, U.S. ARMY MATERIEL
DEVELOPMENT AND READINESS COMMAND,
ALEXANDRIA, VIRGINIA
Activity

Case No. 0-NG-155

DECISION ON NEGOTIABILITY ISSUE

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) (5 U.S.C. 7101 ET
SEQ.).

UNION PROPOSAL

SECTION K. IN ANY REALIGNMENT OF THE WORKFORCE, THE EMPLOYER AGREES
TO THE FOLLOWING PROCEDURES:

1. THE EMPLOYER WILL NEGOTIATE WITH THE UNION AS TO WHETHER A FREEZE
   OF ALL HIRING FROM

OUTSIDE IS NECESSARY FOR THE DURATION OF THE REALIGNMENT OR UNTIL
PERSONNEL ACTIONS UNDER THE

REALIGNMENT HAVE BEEN COMPLETED AND ALL TRANSFER OF FUNCTION (TOF)
AND REDUCTION-IN-FORCE

(RIF) EMPLOYEES HAVE HAD THE OPPORTUNITY TO FILL VACANCIES. EXCEPT
AS PROVIDED IN

SUBPARAGRAPH A, BELOW, BEFORE ANY POSITIONS IN THE ORGANIZATION ARE
FILLED FROM OUTSIDE, ALL

IN-HOUSE EMPLOYEES WILL BE SATISFACTORILY PLACED.

A. IF IT IS AGREED THAT A FREEZE IS NECESSARY THE EMPLOYER WILL
ESTABLISH A JOINT

UNION/MANAGEMENT FREEZE REVIEW BOARD TO REVIEW AND APPROVE ANY
EXCEPTIONS TO THE FREEZE, AND

TO DEVELOP CRITERIA FOR THESE EXCEPTIONS.

B. NO EXCEPTIONS TO THE FREEZE WILL BE PROCESSED WITHOUT JOINT
UNION/MANAGEMENT FREEZE

REVIEW BOARD APPROVAL.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE DUTY TO
BARGAIN UNDER SECTION 7106(B)(2) AND (3) OF THE STATUTE /1/ OR, IS
NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION 7106(B)(1)
OF THE STATUTE, /2/ AS ALLEGED BY THE AGENCY.

OPINION

CONCLUSION: THE PROPOSAL CONCERNS A MATTER WHICH IS NEGOTIABLE ONLY
AT THE ELECTION OF THE AGENCY UNDER SECTION 7106(B)(1) OF THE STATUTE.
ACCORDINGLY, SINCE THE AGENCY HAS DECLINED TO NEGOTIATE ON THE PROPOSAL,
PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 45
FED. REG. 3513(1980), THE AGENCY'S ALLEGATION THAT THE UNION'S PROPOSAL
IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.

REASONS: THE CLEAR MEANING OF SECTION 7106(B)(1) OF THE STATUTE IS
TO RENDER PROPOSALS CONCERNING, INTER ALIA, THE NUMBERS AND TYPES OF
EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL SUBDIVISION NEGOTIABLE ONLY AT
THE ELECTION OF THE AGENCY. LIKEWISE A PROPOSAL WHICH IS DIRECTLY AND
INTEGRALLY RELATED TO THE NUMBERS AND TYPES OF EMPLOYEES ASSIGNED TO AN
ORGANIZATIONAL SUBDIVISION, AND IS THEREBY DETERMINATIVE OF THE NUMBERS
AND TYPES, WOULD BE NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY. /3/

FOR THE REASONS WHICH FOLLOW, THE INSTANT PROPOSAL IS DIRECTLY AND
INTEGRALLY RELATED TO THE NUMBERS AND TYPES OF EMPLOYEES ASSIGNED TO AN
ORGANIZATIONAL SUBDIVISION AND, THEREFORE, IS NEGOTIABLE ONLY AT THE
ELECTION OF THE AGENCY. THE FIRST PART OF THE PROPOSAL WOULD REQUIRE
THE AGENCY TO NEGOTIATE WITH THE UNION ON THE IMPOSITION OF A FREEZE ON
HIRING FROM OUTSIDE THE BARGAINING UNIT. AS STATED BY THE PROPOSAL,
THERE WOULD BE A FREEZE ON HIRING FROM OUTSIDE SOURCES UNTIL ALL UNIT
EMPLOYEES AFFECTED BY THE REALIGNMENT OF THE WORKFORCE WERE
"SATISFACTORILY PLACED," UNLESS AN EXCEPTION TO THE FREEZE IS GRANTED BY
A JOINT UNION-MANAGEMENT BOARD ESTABLISHED TO REVIEW REQUESTS FOR
EXCEPTIONS AND TO DEVELOP CRITERIA FOR APPROVAL OF FURTHER REQUESTS.
THUS, UNDER THE PROPOSAL, THE AGENCY WOULD BE PRECLUDED FROM HIRING NEW
EMPLOYEES OF THE REQUISITE TYPES, AT THE REQUISITE GRADES, AND IN THE
NECESSARY NUMBERS TO MEET CHANGES IN MISSION REQUIREMENTS UNLESS AND
UNTIL AN EXCEPTION TO THE FREEZE IS GRANTED BY A BOARD COMPOSED OF BOTH
UNION AND MANAGEMENT MEMBERS. THE PROPOSAL WOULD THEREBY REQUIRE
NEGOTIATION ON A MATTER WHICH IS DIRECTLY AND INTEGRALLY RELATED TO THE
NUMBERS AND TYPES OF PERSONNEL TO BE EMPLOYED AND CONFLICTS WITH SECTION
7106(B)(1) OF THE STATUTE UNDER WHICH, AS ALREADY STATED, NEGOTIATION ON
SUCH MATTERS CAN OCCUR ONLY AT THE ELECTION OF THE AGENCY.

THE UNION ASSERTION THAT ITS PROPOSAL WOULD MERELY PROVIDE, UNDER
SECTION 7106(B)(3) OF THE STATUTE, APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE OF ITS RIGHT TO
REALIGN THE WORKFORCE AND HENCE, IS NEGOTIABLE, CANNOT BE SUSTAINED.
THE PROPOSAL AS DISCUSSED ABOVE WOULD ALLEVIATE THE IMPACT OF THE
REALIGNMENT ON AFFECTED UNIT EMPLOYEES BY REQUIRING THE AGENCY TO
BARGAIN ON MATTERS WHICH, UNDER THE STATUTE, IT HAS A RIGHT TO ELECT NOT
TO BARGAIN. SIMILARLY, THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
UNDER SECTION 7106(B)(2) OF THE STATUTE AS A PROCEDURE MANAGEMENT
OFFICIALS WILL OBSERVE IN EXERCISING A RESERVED MANAGEMENT RIGHT UNDER
SECTION 7106 OF THE STATUTE.

IN SUMMARY, SINCE THE UNION PROPOSAL WOULD REQUIRE BARGAINING ON
MATTERS NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION
7106(B)(1) OF THE STATUTE AND, PURSUANT TO THAT SECTION, THE AGENCY HAS
ELECTED NOT TO BARGAIN ON THE PROPOSAL, THE AGENCY'S ALLEGATION THAT THE
PROPOSAL IS NONNEGOTIABLE MUST BE SUSTAINED.

ISSUED, WASHINGTON, D.C., JULY 10, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ SECTION 7106(B)(2) AND (3) OF THE STATUTE PROVIDE:

(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING--

. . . .

(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY AUTHORITY UNDER THIS SECTION; OR

(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT
OFFICIALS.

/2/ SECTION 7106(B)(1) OF THE STATUTE PROVIDES:

(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FOR NEGOTIATING--

(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR

POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY, OR ON THE

TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK(.)

/3/ SEE, NATIONAL TREASURY EMPLOYEES UNION CHAPTER 66 AND INTERNAL
REVENUE SERVICE, KANSAS CITY SERVICE CENTER, CASE NO. O-NG-9, 1 FLRA 106
(SEPT. 13, 1979).