National Federation of Federal Employees, Local 108 and U.S. Department of Agriculture, Farmers Home Administration (Authority decision, December 13, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving a negotiability appeal. An aggrieved person may seek review in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

The union proposed terms for a reduction in force at the Farmers Home Administration. One would let union representatives help formulate the retention register used to rank employees for layoffs. The Authority found that this would insert the union into a management decision and was outside the duty to bargain. A second proposal set a 30-day specific notice period and restricted extensions. The Authority accepted the union's explanation that emergency action allowed by regulation would remain possible, found the notice term negotiable, and ordered bargaining on request.

Decision snapshot

• Authority: Reduction in force management rights and procedures under 5 U.S.C. § 7106.
• Outcome: Petition dismissed for Proposal 1; agency ordered to bargain over Proposal 2 on request.
• Key point: Union participation in ranking employees for layoffs exceeded a procedural role, while the notice proposal did not block the agency's layoff authority.

Full text (FLRA public release)

[ v16 p807 ]

16:0807(111)NG

The decision of the Authority follows:

16 FLRA No. 111

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 108
Union

and

U.S. DEPARTMENT OF AGRICULTURE,
FARMERS HOME ADMINISTRATION
Agency

Case No. 0-NG-785

DECISION AND ORDER ON NEGOTIABILITY ISSUES

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and raises issues relating to the negotiability of two Union proposals. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations.

Union Proposal 1

Article 25.3

UNION REPRESENTATION & RETENTION REGISTER

The Union will name a representative and an alternate to assist in formulation of the Retention Registers during the life of the RIF. The representative's duty station will be within the commuting area of Little Rock. In the event the alternate is outside the Little Rock area, the Employer agrees to pay travel and per diem only for that person.

The named representatives will be temporarily relieved from their work assignments in order to assist in formulation of the Retention Registers. The representatives' Performance Appraisal will not in any way be affected by the time spent working with the Employer.

The representative and the Employer will formulate the Retention Registers to insure that error or omission will be corrected immediately. (Only the underlined portions of the proposal are in dispute.)

Union Proposal 1, in effect, would require Union participation in the formulation of the retention register. The formulation of the retention register determines the relative standing of competing employees for reduction-in-force purposes. /2/ In this respect, an employee's standing on the retention register determines which employees are to be retained when an agency must conduct a RIF, i.e., 5 CFR 351.

In agreement with the Agency, the Authority concludes that the portions of Union Proposal 1 in dispute and addressed by the parties interfere with management's right to layoff employees under section 7106(a)(2)(A) of the Statute. /3/ The Authority has consistently held that the management rights enumerated in section 7106 include more than merely the right to decide to take the final actions specified. Instead, it also encompasses the right to take certain actions integral to the exercise of management's rights, such as to discuss and deliberate concerning the relevant factors upon which such a determination will be made. In this regard, in National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982), the Authority, based upon the reasoning in 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), enforced sub non. National Federation of Federal Employees v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), relevantly held that a proposal requiring union representation on a Professional Standards Board and a Position Management Committee would allow the union to interject itself into the decisionmaking process, thereby interfering with management's rights under section 7106 of the Statute.

In the present case, the Union contends that the formulation of the retention register is a mechanical process and that its participation would be solely for the purpose of detecting errors or omissions. However, the Authority concludes that the formulation of the retention register necessarily involves the exercise of managerial judgment in applying relevant regulations to implement management's decision to layoff employees. In this respect, the proposal would allow the Union to participate in the determination of the relative standing of competing employees and hence to participate in the determination of which employees are to be retained in the event of a RIF. Thus, the proposal herein would include the Union in the decision-making process and therefore interferes with management's right to layoff employees under section 7106(a)(2)(A) of the Statute.

Union Proposal 2

An employee who does not accept or declines an offer must do so within 14 days of the issuance of the specific Reduction in Force Notice and will be separated through the RIF procedures. The Specific Notice of RIF will be thirty (30) days and may not be extended. (Only the underlined portion of the proposal is in dispute.)

Contrary to the Agency's contention, Union Proposal 2 does not interfere with management's right to layoff and retain employees under section 7106(a)(2)(A). The proposal requires that a specific notice of reduction-in-force be 30 days and may not be extended. Thus, the proposal herein is a procedure which would not prevent the Agency from acting at all to layoff and/or retain employees. /4/ See American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-MGuire Exchange, Fort Dix, New Jersey, 2 FLRA 152 (1979), enforces sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub non. AFGE v. FLRA, 455 U.S. 945 (1982).

The Agency additionally contends that in certain emergency situations where the notice period had expired the proposal would place the Agency in the position of violating the provision of the Anti-Deficiency Act, 31 U.S.C. 1341, which prohibits the expenditure or obligation of funds that have not been appropriated. However, the Union states that its proposal is not intended to supercede 5 CFR 351.805 which states that an action taken by an agency after the date stated in the specific notice will not generally be invalid for that reason. Thus, the Union concedes that under the regulation the Agency would have the authority to take action beyond the 30 day notice period of the proposal in emergency situations. In light of this interpretation, which the Authority adopts for purposes of this decision, the Authority finds that the proposal does not violate applicable law and regulation.

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review as to Union Proposal 1, be, and it hereby is, dismissed. Furthermore, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposal 2. /5/

Issued, Washington, D.C., December 13, 1984
/s/ Henry B. Frazier III
Henry B. Frazier III, Acting
Chairman
/s/ Ronald W. Haughton
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ In its response to the Agency's Statement of Position, the Union withdrew its petition for review as to part of one proposal.

/2/ For a discussion of reduction-in-force, see International Federation of Professional and Technical Engineers, AFL-CIO, NASA Headquarters Professional Association and National Aeronautics and Space Administration, Headquarters, Washington, D.C., 8 FLRA 212 (1982).

/3/ Section 7106 of the Statute provides, in relevant part, as follows:

Section 7106. Management rights

(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency--

(2) in accordance with applicable laws--

(A) to . . . layoff . . . employees . . . (.)

/4/ Section 7106(b)(2) provides:

(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(.)

/5/ In deciding that Union Proposal 2 is within the duty to bargain, the Authority makes no judgment as to its merits.