National Treasury Employees Union and Department of Health and Human Services, Region IV (Authority decision, February 3, 1983)

Final FLRA decision. This is a final Authority order resolving a negotiability appeal. 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

NTEU proposed one competitive area for employees under the HHS regional official in the Atlanta commuting area, plus a pause in a reduction in force while the Authority resolved a dispute over negotiability based on an agency regulation. HHS said its personnel manual required separate competitive areas to avoid disruption. The Authority found that HHS had not shown a compelling need for that rule because existing regulations let it prevent an assignment that would unduly disrupt operations. It also held the proposed pause a negotiable procedure that delayed, but did not prevent, a lawful reduction in force. HHS was ordered to bargain on both proposals upon request.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(D).
• Outcome: Both proposals negotiable; bargaining ordered on request.
• Key point: An agency rule did not bar bargaining without a demonstrated compelling need, and a procedural delay did not itself foreclose a reduction in force.

Full text (FLRA public release)

[ v11 p254 ]

11:0254(53)NG

The decision of the Authority follows:

11 FLRA No. 53

NATIONAL TREASURY
EMPLOYEES UNION
Union

and

DEPARTMENT OF HEALTH
AND HUMAN SERVICES, REGION IV
Agency

Case No. O-NG-573

DECISION AND ORDER ON NEGOTIABILITY ISSUES

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute), and presents issues relating to the negotiability of the following two Union proposals.

Union Proposal 1

The "Competitive Area" will be established by the Agency as all of those positions under the personnel administration and authority of the Principal Regional Official of DHHS-Atlanta, Ga. within the commuting area of Atlanta, Georgia.

Question Before the Authority

The question is whether, as alleged by the Agency, Union Proposal 1 is inconsistent with an Agency regulation (HHS Personnel Manual Instruction 351-1-40) /1/ for which a compelling need exists, rendering the proposal outside the duty to bargain under section 7117(a)(2) of the Statute. /2/

Opinion

Conclusion and Order: The Agency has not established that a compelling need exists for the Agency regulation which it asserts as a bar to negotiation of Union Proposal 1 and, therefore, the proposal is within the Agency's duty to bargain. 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 Proposal 1. /3/ Reasons: The proposal requires the Agency to bargain the "competitive area" /4/ in which bargaining unit employees who are affected by a reduction-in-force action will compete for retention in the Agency. Under applicable law and regulation, agencies retain discretion to determine such competitive areas in conformance with the standards established by the Office of Personnel Management (See 5 CFR 351.402). The Agency neither argues nor does it appear that the competitive area proposed by the union would be inconsistent with those standards. The only ground asserted by the Agency for its claim that Union Proposal 1 is nonnegotiable is that negotiation is barred by an Agency regulation for which a compelling need exists under the criteria prescribed by section 2424.11 of the Authority's Rules and Regulations. /5/

The Union is the exclusive representative of a bargaining unit consisting of all GS and WG professional and nonprofessional employees of the Agency's Region IV office, headquartered in Atlanta, Georgia. Region IV has six major organizational units (Operating Divisions) which the Agency states operate in a "semiautonomous manner programmatically within general departmental parameters administratively." Under the Agency regulation in question the clerical and wage rate employees within the Atlanta commuting area are in a single competitive area encompassing all six of the Agency's Operating Divisions and all other employees, with certain stated exceptions (see note 1, supra), are placed in six competitive areas corresponding to the Agency's Operating Divisions. Union Proposal 1 would group all employees in the Atlanta commuting area in a single competitive area. The Agency argues that the separate competitive areas for employees in each Operating Division established by Agency regulation are essential to prevent an intolerable amount of disruption that would occur if those employees were allowed to compete across organizational lines. The Agency claims in this connection that under the disputed proposal, "(m)inimally qualified employees could displace highly qualified employees in key positions." The Union argues, to the contrary, that safeguards exist within the regulatory scheme to prevent the type of disruption which the Agency claims will occur, and thus no compelling need exists for the Agency regulation.

In agreement with the Union, the Authority finds that the Agency has not shown that its regulation is supported by a compelling need. In this regard, under 5 CFR 351.701(a)(4), the Agency retains the authority to prevent an employee with a retention standing from bumping into a position held by an employee with lower standing when such assignment would result in "undue interruption to the activity." /6/ Thus, even in the absence of the Agency regulation in question, the Agency could prevent the type of disruption it asserts would occur under the proposal. Therefore, although its regulation may be helpful or desirable, it is not "essential" within the meaning of section 2424.11(a) of the Authority's Rules and Regulations. Accordingly, since the Agency has not demonstrated a compelling need for the regulation which determines the competitive areas for Region IV and since the Union's configuration of a competitive area for Region IV appears consistent with the permissible scope for competitive areas prescribed pursuant to 5 CFR 351.402, Union Proposal 1 is within the duty to bargain.

Union Proposal 2

If agency management alleges non-negotiability of any of the Union's proposals on the basis of "agency rule or regulation" pursuant to 5 USC 7117(a)(2), no implementation of any part of the RIF will take place until a negotiability determination is made by the FLRA. The union will move promptly to request such a determination.

Question Before the Authority

The question is whether Union Proposal 2 is inconsistent with the Agency's rights under section 7106(a) of the Statute, /7/ as alleged by the Agency.

Opinion

Conclusion and Order: This proposal is not inconsistent with the Agency's rights under section 7106(a) of the Statute. It is instead a negotiable procedure under section 7106(b)(2) of the Statute. /8/ Therefore, the proposal is within the Agency's duty to bargain. 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 this proposal.
/9/ Reasons: The Agency argues that the proposal would impose a delay which would be tantamount to preventing the Agency from exercising its section 7106(a) rights to layoff, reduce in grade or pay, or remove employees because a reduction-in-force action taken in response to budgetary or personnel ceiling constraints must be implemented at the time those constraints are imposed. The Agency contends, in this regard, that only through the prompt implementation of such an action can the action serve the purpose for which it was intended.

In American Federation of Government Employees, Local 547, AFL-CIO and Veterans Administration Medical Center, Tampa, Florida, 4 FLRA No. 50 (1980), enforced sub nom. Veterans Administration Medical Center, Tampa, Florida v. FLRA, . . . F.2d . . . (11th Cir. 1982), the Authority found negotiable a proposal which required the Agency to delay a proposed personnel action which had been made the subject of a grievance or arbitration until the litigation had concluded. In examining the negotiability of that proposal, the Authority applied the statutory standard that a proposed procedure, under section 7106(b)(2) of the Statute, which does not prevent the agency from acting at all with respect to its management rights, is negotiable even if it causes a delay in the complete exercise of the rights involved. Under that standard, the instant proposal likewise is within the duty to bargain.
/10/

In so concluding, the Authority emphasizes, as it did in Veterans Administration, that there is nothing in the proposal which would either prevent management from implementing a reduction-in-force action when required to do so by applicable law or regulation or which would prevent management from fulfilling any lawful responsibilities, duties, or obligations. Moreover, the Agency, of course, is not required to agree to the proposal. The bargaining process lends itself to a consideration of the consequences of the proposal and should matters of concern to the Agency, such as the potential for unreasonable delay under the proposal, prevent the parties from reaching agreement, such considerations could be presented to the Federal Service Impasses Panel in a proceeding to resolve a negotiation impasse pursuant to section 7119 of the Statute. Further, decisions of the Panel indicate that the reasonableness of any proposal at issue is a paramount consideration in determining what contract language will be imposed. /11/ Issued, Washington, D.C., February 3, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ HHS Personnel Manual Instruction 351-1-40 establishes the Agency's competitive areas and provides in pertinent part:

351-1-40 COMPETITIVE AREAS

A. The normal subdivisions of the Department for reduction in force are outlined below:

. . . .

5. Positions under a regional office's appointing authority
   form competitive areas as follows:

a. Each PHS Hospital, SSA Program Service Center, and SSA Data Operations Center is a separate competitive area.

b. Positions within the Indian Health Service within each commuting area form a competitive area.

c. All other clerical, secretarial, and wage rate positions in a commuting area constitute a competitive area.

d. For positions other than those covered by 5.a., b., or c. above, separate competitive areas are established region-wide within each of the following components: Office of Secretary, Public Health Service, Health Care Financing Administration,
Office of Child Support Enforcement, Office of Human Development Services, and Social Security Administration.

/2/ Section 7117(a)(2) provides:

Sec. 7117. Duty to bargain in good faith; compelling need; duty to consult

. . . .

(2) The duty to bargain in good faith shall, to the extent not inconsistent with Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any agency rule or regulation referred to in paragraph (3) of this subsection only if the Authority has determined under subsection (b) of this section that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation.

/3/ In deciding that Union Proposal 1 is within the duty to bargain, the Authority, of course, makes no judgment as to its merits.

/4/ A "competitive area" is, in essence, the part of an agency within which an employee who occupied an abolished position may compete with other employees to determine, ultimately, which of them will be retained in the agency. A competitive area is defined in organizational and geographic terms. It typically would include a part of an agency in which employees are assigned under a single administrative authority (5 CFR 351.402) but need not extend beyond a particular commuting area (Federal Personnel Manual, chap. 351, subchap. 2-2.b).

/5/ Section 2424.11 provides as follows:

Sec. 2424.11 Illustrative criteria.

A compelling need exists for an agency rule or regulation concerning any condition of employment when the agency demonstrates that the rule or regulation meets one or more of the following illustrative criteria:

(a) The rule or regulation is essential, as distinguished from helpful or desirable, to the accomplishment of the mission or the execution of functions of the agency or primary national subdivision in a manner which is consistent with the requirements of an effective and efficient government.

(b) The rule or regulation is necessary to insure the maintenance of basic merit principles.

(c) The rule or regulation implements a mandate to the agency or primary national subdivision under law or other outside authority, which implementation is essentially nondiscretionary in nature.

/6/ Reassignment rights in a reduction-in-force are discussed in 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 No. 46 (1982).

/7/ Section 7106(a) provides, in relevant part:

Sec. 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 hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees(.)

/8/ Section 7106(b)(2) provides:

Sec. 7106. Management rights

. . . .

(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(.)

/9/ In deciding that Union Proposal 2 is within the duty to bargain, the Authority, of course, makes no judgment as to its merits.

/10/ The proposal only requires management to delay proposed personnel actions pursuant to its rights under the Statute. Therefore, the Agency's additional argument that the proposal would violate management's right under section 7106(b)(1) to determine the numbers and types of employees assigned to an organizational subdivision is similarly without merit for the reasons stated in Veterans Administration.

/11/ See, e.g., In the Matter of U.S. Army Corps of Engineers and NFFE, No. 82 FSIP 46 (Mar. 31, 1982); In the Matter of Defense Mapping Agency and AFGE, No. 81 FSIP 17 (Apr. 8, 1981); In the Matter of SBA and AFGE, No. 80 FSIP 30 (Oct.6, 1980).