DATE: December 4, 1997
TO: IAG NETWORK ON PARTNERSHIP AND LABOR-MANAGEMENT RELATIONS
FROM: MICHAEL CUSHING, DIRECTOR
CENTER FOR PARTNERSHIP AND LABOR-MANAGEMENT RELATIONS
SUBJECT: LABOR-MANAGEMENT RELATIONS IMPLICATIONS OF
OPM'S REVISED REDUCTION IN FORCE REGULATIONS
On November 24, 1997, the Office of Personnel Management published final regulations, (see 62 FR 62495) amending Parts 351, 430, and 531 of title 5, Code of Federal Regulations. These amendments revised the Office of Personnel Management's regulations governing reduction in force and performance management.
Flexibilities. Under the final regulations, agencies now have flexibilities in several critical areas.
There is no such flexibility if everyone in the competitive area received ratings of record under a single pattern of summary levels (e.g., all ratings of record being credited for the reduction in force were given under a 4 level system, or under a 5 level system, etc.). In this case, the agency must use the 12-16-20 limits for additional service credit as set forth in the regulations.
If agencies do identify conflicts between the new regulations and provisions of existing agreements, agencies should make every attempt to reopen the agreements and bring them into conformance with the new Governmentwide regulations. If management is unable to reopen the agreement, then it should give the exclusive representative(s) ample advance notice that effective on the expiration of the current agreement, the agency will implement the new regulations. Agencies wishing to implement these regulations need to be sure not to let the current agreement automatically renew without implementing the new regulations.
Depending on the particular circumstances, agencies may have to bargain over the impact and implementation of the new regulations. Where the regulations give agencies discretion and flexibility, agencies may find themselves faced with requests by the exclusive representative(s) to bargain over those flexibilities.
Agencies should be aware of a situation involving the unilateral decision to tabulate modal ratings on an agency-wide basis. Doing so would appear to be similar to establishing an agency-wide regulation. Agency-wide regulations are not automatic bars to negotiations unless the agency can show that there is a compelling need for the regulation. Given the trend by the courts and Federal Labor Relations Authority over the past decade, proving compelling need for agency-wide regulations has become extremely difficult.
The impact of section 351.201(c) is still not entirely clear. In the Federal Labor Relations Authority's decision in American Federation of Government Employees Local 32 and Office of Personnel Management, 51 FLRA No. 42 (November 6, 1995), the Federal Labor Relations Authority held that a union proposal attempting to define the competitive areas was outside the agency's duty to bargain. Because the competitive areas proposed by the union would have included supervisory personnel, the proposal was outside the agency's duty to bargain. In reaching their decision, the Federal Labor Relations Authority relied on Naval Aviation Depot, Cherry Point, NC v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992). In Cherry Point, the court was faced with proposals that would have determined conditions of employment for supervisory personnel and employees in more than one bargaining unit. In its decision, the court used the phrases "outside the duty to bargain" and "non-negotiable." In fact the court said:
[T]he two provisions at issue in this case are non-negotiable to the extent that they purport to regulate the conditions of employment of supervisory personnel and employees in other bargaining units.
In American Federation of Government Employees Local 3302 and Social Security Administration, 52 FLRA No 65 (November 29, 1996), the Federal Labor Relations Authority modified its prior holding in OPM by saying:
[T]he [Federal Labor Management Relations] Statute does not expressly prohibit bargaining over matters that directly implicate the working conditions of managers and supervisors. Thus, there is no clear statutory basis for concluding that bargaining over such matters is prohibited. . . . Therefore, we will adhere to the position expressed in Philadelphia Naval Shipyard, 3 FLRA 438 (1980) that an agency is fully empowered to bargain over, and to choose to agree to, a contract proposal that directly implicates the working conditions of its supervisors and managers.
At the very least, proposals which, by operation of section 351.201(c), would determine conditions of employment for the supervisors in the competitive area are outside the duty to bargain but are permissive subjects of bargaining (but not covered by section 7106(b)(1) of title 5, United States Code) and agencies may therefore elect to bargain or not to bargain over them. Under a more narrow interpretation of Cherry Point, such proposals are non-negotiable and bargaining over them is prohibited.
Another unresolved question concerns agency-head review under title 5, Unites States Code, section 7114(c). If the local management opted to negotiate over areas covered by the Office of Personnel Management's reduction in force regulations on the basis that such negotiations were permissive (but not "(b)(1)" matters), can those provisions be set aside by higher level management upon agency-head review. It is far from clear if the D.C. Circuit's decision in Association of Civilian Technicians, Montana Air Chapter No. 29 v. Federal Labor Relations Authority, 22 F.2d 1150 (D.C. Cir. 1994), and the Federal Labor Relations Authority's decision in Department of Veterans Affairs Medical Center Lexington, Kentucky, 51 FLRA No. 36, would apply in this situation. Those decisions dealt with "(b)(1)" permissive subjects rather than other subjects that were outside the duty to bargain but could be bargained if management elected to do so.
If agencies have any questions on the labor-management relation implications of the Office of Personnel Management's new reduction in force regulations or the material contained in this advisory, please call the Office of Personnel Management's Center for Partnership and Labor Relations on 202-606-2930. Our email address is firstname.lastname@example.org.
This issuance provides guidance from the U.S. Office of Personnel Management, Center for Partnership and Labor-Management Relations (CPLMR) and should not be interpreted as a policy document. It is based on the best information available at the time of issuance. If you have any questions or comments, please feel free to contact CPLMR at (202) 606-2930.