NAGE Local R14-87 and Adjutant General of Kansas (Authority decision, April 16, 1986)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability proceeding. An aggrieved person may seek judicial review by filing a petition 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 Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

NAGE proposed return or repromotion rights for Kansas National Guard employees removed or demoted in a reduction in force when their former positions became vacant and the agency chose to fill them. A second proposal made those rights take priority within the agreement. The Authority held that the first proposal gave qualified employees an appropriate arrangement without excessively interfering with management's selection or assignment rights. It also found no conflict between the second proposal and the agency's regulation for calculating retention standing. Both proposals were within the duty to bargain, and the agency was ordered to bargain upon request.

Decision snapshot

• Authority: Appropriate arrangements under 5 U.S.C. § 7106(b)(3) and management rights under § 7106(a)(2)(A) and (C).
• Outcome: Both proposals within the duty to bargain; bargaining ordered upon request.
• Key point: Limited return rights can protect employees hurt by a RIF while leaving the agency to decide whether to fill a vacancy.

Full text (FLRA public release)

[ v21 p313 ]

21:0313(42)NG

The decision of the Authority follows:

21 FLRA No. 42

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-87
Union

and

THE ADJUTANT GENERAL
OF KANSAS
Agency

Case No. 0-NG-910

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of two Union proposals.

II. Union Proposal 1

Article 12, Section 7: Change to read:

a. When the specific position, in an activity, from which an individual has been removed or demoted through reduction in force (RIF) is vacant and is being filled, the individual who was removed or demoted will be returned to the position and/or grade noncompetitively subject to paragraph b, below.

b. A basis for an individual not to be returned to his former position and/or grade, noncompetitively is an unsatisfactory performance rating which is documented in the individual's OPF, at the time the position concerned becomes vacant, or documentation that the individual's work either before or after the action by reduction in force, was not at an acceptable level of competence.

c. If more than one individual meets the criteria contained in a and b above, the employee who possessed the highest retention standing at the time of the RIF action will be returned to the concerned position and/or grade prior to others listed on the retention register.

d. All individuals previously affected in a RIF without personal cause, misconduct, or inefficiency, will receive special consideration for being returned to their former position and/or grade.

NOTE: FOR THIS SECTION THE TERM (sic) "FORMER POSITION" and "CONCERNED POSITION" INCLUDES BUT IS NOT LIMITED TO THE ACTIVITY THE INDIVIDUAL WAS EMPLOYED AT, AT THE TIME OF THE RIF.

A. Positions of the Parties

The Agency alleges that the proposal is nonnegotiable because it interferes with management's right under section 7106(a)(2)(C) to fill positions by making selections from any appropriate source. The Agency also alleges that the proposal violates management's right to assign employees under section 7106(a)(2)(A) by requiring the reassignment of demoted employees. The Union argues, citing the decision of the U.S. Court of Appeals for the District of Columbia Circuit in American Federation of Government Employees, AFL-CIO, Local 2782 v. Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983), reversing and remanding American Federation of Government Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA 91 (1981), that the provision constitutes an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute for employees adversely affected by the exercise of management's rights.

B. Analysis

Union Proposal 1 in this case, which provides reemployment or repromotion rights for persons removed or demoted in a reduction-in-force (RIF), is comparable to Provision 2 at issue in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986).

The proposal in this case, like Provision 2 in that case, would apply only when management decides to fill positions from which employees have been removed or demoted in a RIF. Similarly, it would only require management to reemploy or promote employees who were qualified for and had previously performed acceptably in the position being filled. Union Proposal 1, therefore, does not impose any greater burden on management or provide any greater benefit for employees than the provision in Kansas Army National Guard. As with the provision at issue in Kansas Army National Guard, the burden on management in these circumstances is insubstantial in comparison to the detriment originally suffered, and the benefit later obtained, by the affected employees.

C. Conclusion

Consistent with our reasoning in Kansas Army National Guard, we hold that Union Proposal 1 does not excessively interfere with management's right, under section 7106(a)(2)(C), to fill vacant positions by making selections from any appropriate source and that it is an appropriate arrangement under section 7106(b)(3). We note that while the Kansas Army National Guard case involved only repromotion rights, and this case involves repromotion and reemployment rights, it does not appear, nor do the parties argue, that there is any material difference in those rights so as to affect the outcome in this case.

We further conclude that Union Proposal 1 does not excessively interfere with management's right to assign employees under section 7106(a)(2)(A). Even if the Agency's argument that reemployment and repromotion are "assignments" within the meaning of section 7106(a)(2)(A) were credited, there would not be any different or additional substantive effect on management's rights or on management's practical needs. Therefore, we find that by designating the particular employee to be reemployed or repromoted, that is, "reassigned," the proposal would not excessively interfere with management's right to assign employees.

III. Union Proposal 2

Article 13: Add the following note:

NOTE: Provisions of Article 12, Section 7, (Union Proposal 1, supra) of this agreement will take precedent (sic) over this article.

A. Positions of the Parties

As explained by the parties, Union Proposal 2 requires the Agency to abide by Article 12, Section 7, in any situation where that provision conflicts with the Agency's RIF regulations which are cited in Article

13. The Agency contends that, by making Union Proposal 1 applicable in
    RIF situations, Union Proposal 2 is nonnegotiable for the same reasons it alleges Union Proposal 1 is nonnegotiable. In addition, the Agency argues that Union Proposal 1 could not, as required by Union Proposal 2, take precedence over Article 13 because the latter incorporates Technician Personnel Regulation (TPR) 300 (351), an Agency regulation for which the Authority has found a compelling need to exist. The Union contends that if Union Proposal 1 is negotiable, Union Proposal 2, which depends upon it, is also negotiable.

B. Analysis

Because it would also give force to Article 12, Section 7 (Union Proposal 1 in this case), the proposal presents issues as to management rights which are identical to those addressed in the discussion of Union Proposal 1. For the reasons set forth above we find that this proposal does not excessively interfere with management's rights under the Statute.

The Agency further argues that by giving Article 12, Section 7, priority over Article 13, Union Proposal 2 conflicts with an Agency regulation, Technician Personnel Regulation (TPR) 300 (351), for which a compelling need exists. The Agency cites certain Authority decisions in support of its argument. /1/ Those decisions, however, held that there was a compelling need only for that part of the cited regulation which requires civilian technician RIF retention standing to be based on each employee's civilian and military appraisals. These decisions stand for the limited proposition that that part of the regulation constituted a bar to proposals insofar as they would have eliminated the military appraisal as a factor in determining technician retention standing. The Agency does not claim, or refer to any other decision in which the Authority has found, that a compelling need exists for any other portion of that regulation. Thus it appears that the Agency is only arguing that Union Proposal 2 conflicts with the part of its RIF regulations which prescribe the criteria for determining an employee's retention standing.

The Agency's argument, however, overlooks the fact that the proposal requires the selection of the employee with the highest retention standing and that the standing would be determined in accordance with the Agency's regulations. That is, the proposal by its express terms must be applied consistent with precisely that part of its regulations on which the Agency relies to bar negotiation.

C. Conclusion

Since the Agency has not demonstrated any conflict between the proposal and the cited Agency regulation, that regulation does not constitute a bar to negotiation of Union Proposal 2. Union Proposal 2, therefore, constitutes a negotiable appropriate arrangement under section 7106(b)(3) and is within the Agency's duty to bargain under the Statute.

IV. Order

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 Proposals 1 and 2. /2/

Issued, Washington, D.C., April 16, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

(1) The Agency cites American Federation of Government Employees, AFL-CIO, Local 2953 and National Guard Bureau, Office of the Adjutant General, Nebraska, 7 FLRA 87 (1981), affirmed American Federation of Government Employees, AFL-CIO, Local 2953 v. Federal Labor Relations Authority, 730 F.2d 1534 (D.C. Cir. 1984); 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), affirmed as to these matters and reversed and remanded as to other matters sub nom. Association of Civilian Technicians, Montana Air Chapter v. Federal Labor Relations Authority, 756 F.2d 172 (D.C. Cir. 1985), Decision and Order on Remand, 20 FLRA No. 85 (1985). See also Association of Civilian Technicians, Pennsylvania State Council and Pennsylvania Army and Air National Guard, 14 FLRA 38 (1984) (Proposal 2).

(2) In deciding that the proposals are within the duty to bargain, the Authority makes no judgment as to their merits.