(. . . continued) Issues 40 through 57

Issues 1 through 15

previous: Issues 16 through 39 

next: Issues 62 through 79

Issues 40 through 57 follow:

28. ISSUE #40 (Union § 7 E, para. 2, sent. 3-5; Employer § II D 2)

Which appraisal forms, or other evidence, may be used to calculate performance-based retention credit and under what circumstances?

a. The Union’s Position

The Union proposes the following:

Where there are conflicting appraisals, the IRS form 6850 will be considered over either the IRS Forms 3860 or 9857, absent evidence that one is not valid. An appraisal with the signature of at least one manager may be used to establish RIF Adjusted SCD’s. In the absence of any of these the employer will consider any evidence that management assigned an appraisal of a certain performance level, e.g., documentation of a performance award based on a performance appraisal.

Its proposal should be adopted mainly because the Employer’s is "technically flawed." First, using only IRS forms in considering performance appraisals, as required by a strict reading of the Employer’s wording, would prevent it from considering appraisals from an employee’s time at another agency, "an indisputable violation of Government wide regulation." Employees, therefore, could challenge retention registers through the grievance procedure if IRS in fact fails to consider such ratings and have a "great chance of being sustained before an arbitrator;" it also would put the Union in a precarious position of determining whether to sign an agreement where a potential "duty to fairly represent" ULP hangs over its head if it does anything to undermine employee rights. Second, it would not permit the use of a "surrogate document," such as a management prepared narrative in support of a performance award indicating the award was based on an overall rating of "Exceeds Fully Successful," even if the actual appraisal was lost by the IRS. Third, the goal of the proposal appears to be to "free IRS of any liability when a manager fails or refuses to prepare an appraisal that is due the employee." In this regard, if management prepares an appraisal after its due date, it may be used for award or promotion purposes, but not for retention purposes. This would be considered "insane" by the average employee, and "seriously undermine employee credibility in the system." The strength of the Union’s proposal, on the other hand, is that it avoids these defects and is consistent with the OPM regulations on this issue "which supports inclusion of appraisal data." Thus, the Employer’s argument that the proposal violates Government wide regulations is invalid because "IRS misconstrues the regulation on which it relies."

    b. The Employer’s Position

    The Employer proposes the following:

Only the following performance records may be used for the purpose of computing additional RIF service credit:

a. A Form 6850, "Job Element Appraisal" containing at least one managerial signature;

b. A Form 3860 or 9857, containing at least one managerial signature;

c. If a signed Form 6850, 3860, and/or completed Form 9857 exist for the same rating cycle and the ratings differ, the summary rating on the Form 6850 will be used;

d. If no Form 6850, 3860, or 9857 with one managerial signature exists, the rating of a presumed "Fully Successful."

e. Forms 6850, 3860, or 9857 with one managerial signature which have been timely prepared and signed are acceptable regardless of the time the ratings were input into TIMIS.

f. To be creditable, ratings much be completed within 30 days of the end of the rating cycle. For purposes of the RIF about which the Service notified the Union on July 29, 1996, a performance rating/appraisal, as defined above, which was completed before August 16, 1996, and more than 90 days after the end of a rating cycle will be accepted for the RIF. However, any appraisal prepared after August 16, 1996, which was prepared more than 90 days after the end of the rating cycle will not be accepted for the RIF.

The last sentence of the Union’s proposal is nonnegotiable because it is contrary to Federal law and Government wide regulations. In this regard, 5 C.F.R. 351.504(b)(1) specifies that only "annual performance ratings of record" may be used in determining retention standing, while 5 C.F.R. 351.504(b)(3) requires that, to be creditable, a rating must have been issued to the employee with appropriate reviews and signatures and be available for use by the office responsible for establishing retention registers. The Union’s proposed wording, however, would require management to accept any other evidence that the Agency may have assigned a specific rating level to the employee, such as documentation of a performance award. Not only do the regulations prohibit the Agency from considering such evidence, but the fact that an employee received a performance award does not necessarily mean that the employee actually received a performance rating. On the merits, adoption of the Union’s proposal would present an "unmanageable" administrative burden for the Agency as it attempts to evaluate a "flood of submissions" to ensure that its records are correct. Finally, if the Union were really concerned about protecting IRS employees who previously received ratings from other agencies, rather than ratings received by Agency employees from the Agency, "it would have been more specific in its proposal."

    The Arbitrator adopts the Union's proposal without the last sentence (beginning, "In the absence of....") which appears to be non-negotiable as inconsistent with OPM regulations (both current and proposed) about what is to be done to credit performance when there is no appraisal on record. The Employer's proposal is also inconsistent with OPM regulations by failing to permit consideration of ratings from other agencies.⁽³³⁾ The Employer also imposes (in subpart f) an additional cutoff that could conceivably operate to exclude certain performance appraisals without having discussed or demonstrated any need for this measure.

29. ISSUE #41 (Union § 7 E 1; Employer § II D)

What process will be used to determine how to award performance-based retention credit to those employees who may have been evaluated using something other than a five-level rating system?

a. The Union’s Position

The Union proposes the following:

If there are any local offices that did not issue a five-level evaluation during the last 3 years, IRS will so notify NTEU and the parties will negotiate over all appropriate matters prior to the implementation of a RIF for employees in their competitive level and area. In no case will the fact that a pass-fail evaluation was done relieve the Employer of any obligation it had under the contract to provide a five-level evaluation.

Its wording is intended to cure a problem resulting from the establishment of pass-fail performance evaluation systems in the Helena District (Montana), which was targeted as a Reinvention Lab Project, and in some other areas where local parties adopted such systems even though NORD IV requires five-level appraisals. Now that IRS is proposing a RIF, affected employees in these areas "see themselves as damaged and want to claim the full rights of the term agreement that was binding on them." While its proposal calls for negotiations which it believes would lead to a consensus solution, the Employer’s "ignores this dispute and simply says that it will proceed forward as if it does not exist." Although negotiations might put the RIF of Montana employees on a different timetable than all other employees, this is preferable to requiring them to "appeal and pursue retroactive correction." In addition, the Employer’s proposal is drawn from current RIF regulations which OPM has proposed to change to permit employers more flexibility in converting pass-fail to five-level rating systems, an approach which the Union would like the opportunity to apply to the "Montana problem." Selection by the Arbitrator of the Employer’s proposal would bar the use of any new authority OPM gives agencies. With respect to the Employer’s nonnegotiability allegations, its proposal merely preserves its right "to argue that other binding documents, such as other contracts or regulations, do require the development of appraisals."

    b. The Employer’s Position

    The Employer proposes the following:

Any employee rated under any system other than a five-level system must receive the following rating:

Pass/Fail System: Pass = Fully Successful

Fail = Unacceptable

3-Level System: Level 5 = Outstanding

Level 3 = Fully Successful

Level 1 = Unacceptable

Narrative = Fully Successful

NA/NR = Presumed Fully Successful

The last sentence of the Union’s proposed wording is nonnegotiable because it is contrary to Federal law and Government wide regulations. Under 5 C.F.R. 430.208(d)(2), employees in a pass-fail system may only receive ratings of 1 (unacceptable performance) or 3 (fully successful). Under the section on performance credit, 5 C.F.R. 351.504(d), therefore, employees with a rating of 3 must be granted 12 years of credit, the amount the regulations specify must be credited for a Fully Successful rating. Further, "there is no authority within the RIF or the performance management regulations which permits an agency to change or convert the ratings received under a pass-fail system to a five-level system." The proposal also is outside the duty to bargain because it would determine the conditions of employment of non-unit employees and would prevent the Agency from applying the RIF regulations uniformly and consistently. In this regard, other than Union stewards, the only employees within the IRS receiving pass-fail ratings were managers and members of the unit in the Helena Reinvention Lab. If the Union were concerned with more than simply delaying the RIF, it could have offered proposals to address their interests during negotiations. Instead, it chose to proffer a proposal which would only result in "further protracted negotiations;" it should not be "rewarded" for its failure to provide specific proposals and given yet another opportunity to delay the RIF in the guise of negotiations. Moreover, as indicated above, there is no need for further negotiations over these matters, as they are already covered by the RIF regulations.

    The Arbitrator adopts the Employer's proposal, referring the parties to the rationale concerning OPM's proposed revisions to its RIF rules contained in the conclusion on Issue #37. The Arbitrator is without authority to adopt the Union's proposal as currently written in the face of the negotiability argument based on an apparent direct conflict with current OPM rules. The Arbitrator would note that even if OPM's changes are not issued before this agreement takes effect, if those changes permit more flexibility than presently allowed for dealing with the apparent hardship situation in Helena, the parties would apparently be free to choose to negotiate another crediting plan for this small number of employees, depending upon where the Employer is in the RIF process.

30. ISSUE #42 (Union § 7 E 2; and Employer § II D 2)

What are the minimum requirements for crediting additional service credit based on appraisals?

a. The Union’s Position

The Union proposes the following:

To be creditable for purposes of computing additional service credit, a rating need only meet the minimum standards necessary for determination of whether it is proper.

The Employer’s proposal, which would incorporate OPM regulations into the agreement on this topic, "is likely to lead to implementation problems" because the wording is unclear. For example, where an employee’s evaluation has been used as the basis for a promotion action or cash incentive award, it would seem to have been accepted as an official document and should be used in the RIF. Since this may have occurred without all "appropriate signatures" affixed, as required under the OPM regulations, such appraisals would not be usable for RIF purposes. This is yet another situation where the average employee will be unable to understand why an appraisal which was good enough to support a cash award "is not considered in the decision to retain him." The Union’s proposal, therefore, would require management to interpret the regulations so that such appraisals are included in service credit calculations, rather than leaving the employee with a presumed Fully Successful rating. Put another way, it mandates that the Employer give employees "the benefit of the doubt" when considering appraisals so this, and other similar problems, can be avoided.

    b. The Employer’s Position

    The Employer proposes the following:

To be creditable for purposes of computing additional service credit, a rating must have been issued to the employee, with all appropriate reviews and signatures, and must also be on record (e.g., the rating is available for use in establishing registers).

Its proposal merely restates the applicable RIF regulation (at 5 C.F.R. 351.504(b)(3)) "in its entirety." The Union’s proposal, on the other hand, is "entirely unclear" when it suggests that ratings need only meet the "minimum standards" necessary for determining whether they are proper. It should be rejected because, without a definition of "minimum standards," the parties would undoubtedly be embroiled in disagreements over how the proposal should be applied.

    The Arbitrator adopts the Employer's proposal which states the "minimum" required by current OPM regulations; as the Arbitrator reads them. the proposed OPM revisions do not change.

31. ISSUE #43 (Union § 7 E 3; Employer § II D 3 and 4)

Shall the contract spell out the rules for determining service credit, including for those employees missing appraisals, or shall it merely reference the Government wide rules?

    a. The Union’s Position

    The Union proposes the following:

Service credit for employees who do not have useable performance ratings of record received during the appropriate period prior to the cutoff date shall be determined pursuant to Government wide regulations.

Its wording would ensure that recently proposed revisions to OPM’s RIF regulations, which potentially increase the use of merit-based data in determining service credit, are incorporated into the agreement. Under the Employer’s proposal, on the other hand, if the agreement is implemented before the new regulations are finalized, many of the "shortcomings" in the current system that the new regulations are intended to correct would not be addressed. It would be "odd" if the parties were restricted to using a system that recently has been redesigned after 40 years "only to have an employer decide that it is going to block the correction that OPM says will promote greater merit considerations."

    b. The Employer’s Position

    The Employer proposes the following:

Service credit for employees who do not have three actual performance ratings of record during the 4-year period prior to the cutoff date described in Section II, D, 1. shall be determined as follows:

a. An employee who has not received an annual performance rating or record shall receive credit for performance on the basis of three assumed ratings of "Fully Successful."

b. An employee who has received at least one but fewer than three previous annual performance ratings of record shall receive credit for performance on the basis of actual rating(s) received and one or two assumed rating(s) of "Fully Successful", whichever is needed to credit the employee with three ratings.

The additional service credit an employee receives for performance shall be expressed in additional years of service and shall consist of the mathematical average of the employee’s last three (actual and/or assumed) annual performance ratings of record computed on the following basis:

a. Twenty additional years of service for each performance rating of "Outstanding" or equivalent.

b. Sixteen additional years of service for each performance rating of "Distinguished" or equivalent.

c. Twelve additional years of service for each performance rating of "Fully Successful" or equivalent.

Once again, its proposal merely restates the regulatory requirements in 5 C.F.R. 351.504(c), this time with respect to how employees with missing ratings must receive performance credit. The Union’s proposal, in contrast, is "not invalid or incorrect," but does not do a very good job of informing employees about the RIF process and their RIF rights. Telling them that such matters will be determined in accordance with Government wide regulations is an inferior approach when they could be given details and substantive information.

    The Arbitrator adopts the Employer's proposal, referring the parties to the rationale concerning current versus revised OPM regulations set forth in the conclusions on Issue #37.

32. ISSUE #44 (Union § 7 E 5; Employer § II D 6 b)

Shall there be a cut-off date for updating qualifications and, if so, what shall the date be?

a. The Union’s Position

The Union proposes the following:

Employees will be encouraged to update their qualifications through the submission of updated SF 171's merit program questionnaires, and/or OF 612's. Submissions of updated materials will be accepted at any time and the RIF calculations adjusted accordingly.

Applicable regulations set no cut-off date for the revising of employee qualifications, yet the Employer’s proposal seeks to establish one. Besides the fact that its proposal conflicts with MSPB case law,⁽³⁴⁾ it is "obviously" in the interest of employees to keep qualifications statements current because doing so may lead to more opportunities for assignment to more desirable positions during "RIF adjustments." It is also in the interest of management to be guided by the latest and best information, to the extent it has some control over the assignments. The Employer’s arbitrary cut-off date would prevent the consideration of new developments, such as an employee who completes a degree or certification requirement, or completes enough time-in-grade to be promoted to the next career level, simply because they occur within the 90-day period before the RIF is finalized (i.e., the Employer’s proposed 60-day notice period and the 30 days prior to that time). Such new qualifications should be considered "if at all possible," particularly where they can influence something as serious as the position to which an employee will be assigned for the foreseeable future, and where the Employer has been unable to establish the need for a cut-off date.

    b. The Employer’s Position

    The Employer proposes the following:

Employees will be encouraged to update their qualifications through the submission of updated SF 171's, merit program questionnaires, and/or OF 612's. Submissions of updated materials will be accepted no later than 30 calendar days prior to the proposed date for issuance of RIF notices.

The parties previously reached agreement on this matter in their Pre-RIF Agreement, and established the same 30-day cut-off period stated in this proposal. The Union’s current proposal "simply reflects its desire to delay the RIF." During the course of a RIF, employers have the discretion to set a uniform cut-off date for updating qualifications, and once such a date is established, they do not have to consider evidence received after the deadline in determining an employee’s qualifications for assignment to other positions. If a date is not established or uniformly enforced, however, it is "required to accept updated qualifications at any time prior to an employee’s release for his or her competitive level."⁽³⁵⁾ This would be "extremely burdensome and unsettling." The "trickling in" of additional information would make it difficult "to ever issue RIF notices;" once issued, they would have to be "constantly revised." Finally, it is a time-consuming process to determine all the positions within a competitive area for which the employee may have reassignment rights because an agency may have to consider dozens of positions for each employee. In addition to the reasons provided above, the Employer’s proposal should be adopted because a minimum of 30 days is needed "to successfully complete this qualification determination prior to the issuance of RIF notices."

    The Arbitrator adopts the Employer's proposal. The Union proposal by its terms permits an employee to update qualifications any time, which has to be read as meaning up to the date the RIF is completed by the movement/separation of employees. The potential for disrupting the RIF and requiring reruns of bumping, with the consequent "spill-down" effect, is not hard to see. It is plain that throughout the pre-RIF stage, employees have been encouraged to examine their files and update their qualifications. Presumably, the Union is therefore concerned about last minute changes (new credentials achieved). The Employer stated at the hearing that career ladder promotions would automatically be taken into account by the Employer, not being obviated by this language. Granted, this does not cover other situations. On balance, however, the breadth of the Union's proposal makes the weighing of benefit and burden tilt in the Employer's favor.

    The MSPB sanctions agencies "setting a specific and uniformly enforced cutoff date for the submission of updated qualifications." Gregg v. Dept of Navy, 71 MSPR 127 (1996) (Gregg). The case of McMahon v. Dept of Army, 21 MSPR 159 (1984) (McMahon), relied upon by the Union, interpreted a provision of the Federal Personnel Manual, still extant at that time. Given the dates of the cases, the abolishment of the FPM and the absence of a corresponding restriction in current OPM RIF rules, the Arbitrator considers Gregg to be current law and to pose no bar to adoption of the Employer's proposal. (It is noted even so, that the FPM provision cited in McMahon did not require updating of qualifications "at any time" but only up to release from the competitive level, more limited than the Union's proposal.)

33. ISSUE #45 (Union § 7 F)

Will the Agency be required to waive qualifications for vacancies and, if so, what standards will apply?

a. The Union’s Position

The Union proposes the following:

When the Agency determines to fill vacancies during the RIF process in order to facilitate placement of affected employees at the same or lower grade, the Agency will waive all qualifications, within its authority to waive, to the maximum extent feasible when the employee has the capability, adaptability, and special skills needed to satisfactorily perform the duties and responsibilities of the job and when it can be reasonably determined that the employee could perform the duties of the position within 90 days.

While the Employer could insist that employees meet "every letter of the OPM qualifications" for assigning employees to other positions in the agency, it also has the right to waive them, at least to some extent. During negotiations, the Employer had even tentatively agreed to do so. The Employer should be ordered to live up to its tentative agreement to waive minimum qualification standards because: (1) it would avoid the considerable expenses associated with failing to fill a job during a RIF with an on-board employee; (2) the criteria proposed by the Union protect management from having to place employees into positions they are unable to perform; (3) the Employer has failed to provide legitimate reasons for not doing so; (4) the parties have agreed to the use of qualification waivers in connection with one of the Employer’s other proposals; and (5) the Employer has "unilaterally granted similar waivers in recent situations that do not even involve a RIF." Overall, then, adoption of the Union’s proposal would produce another "win-win" situation where the Employer gains more output for its salary dollar and more at-risk employees are retained by the Agency.

    b. The Employer’s Position

    The Employer has no counterproposal. It opposes the Union’s proposal that it exercise its discretion under the RIF regulations and waive qualifications for all vacancies "because it is much too expansive." When the Agency’s reorganization and downsizing efforts are completed, its organization will be operating with a reduced work force, and will need to ensure that those employees who remain are fully qualified and capable of performing their assigned duties. Adoption of the Union’s proposal could result in the placing of relatively unqualified employees in critical positions, and put employees at risk of later removal actions based on poor performance. The Employer has already agreed to waive qualification standards when making offers to employees affected by the RIF in lieu of separation. Waiving qualification standards only for employees who otherwise would be separated strikes an appropriate balance between placing employees and meeting mission requirements. Moreover, because the vacancies remaining after the RIF process is complete will most likely be below the journeyman level, employees who are retained through the in-lieu-of-separation offer would not be expected to achieve full performance immediately.

    The Arbitrator adopts the Union's proposal. The proposal contains language that is responsive to the concerns raised by the Employer and which can reasonably be expected to prevent the "worst case" scenarios it offered in its arguments. The Union's proposal clearly is a means of ameliorating the impact of the RIF on employees, a major concern of both parties, and the Employer has offered no concrete impediment to it.

34. ISSUE #46 (Union § 8 A, 1-7; Employer § II D 6.a., sent. 1)

What will be included in a summary notice which employees will be provided prior to the issuance of the Notice of a RIF?

a. The Union’s Position

The Union proposes the following:

The Employer will provide each employee in each competitive area who is at or below the highest grade position abolished with a statement showing the following:

1. the Agency offices in that competitive area

2. to the extent the IRS asserts that there is more than one competitive level in a series, it will notify all employees in that series of the definition and distinguishing characteristics of the various levels in their series, the minimum qualifications for each level, what levels they are considered to be in and based on what facts, the competitive level of all other employees in their series and in their appointing office

3. the separate ratings and dates (years) for each of the four most recent appraisals considered (missing appraisals will be so indicated)

4. their tenure group

5. their preference eligible status

6. their unadjusted and adjusted RIF SCD, and

7. the positions to which the employee will be allowed to bump and retreat.

At the heart of its proposal on this issue is "openness and accountability." While the parties have agreed that the Employer would provide employees with summary statements prior to the time formal Notices of RIF are distributed, management has refused to include (at least) Union-proposed items 1, 2a, 2b, 6, and 7. The Employer has had this information "for months," and it should be released to "impacted employees" for a number of reasons. First, any errors in the information could be identified and corrected early. This is particularly important due to the errors that were "repeatedly" discovered throughout early runs of the data occurring in the preparation period for the RIF. Second, because IRS has never run a RIF before, providing employees the requested information would be helpful, among other ways, by leading them "to make some decisions early that they might postpone otherwise, e.g., request early retirement, etc." Finally, the Employer "has never offered a good reason" for denying them the information, and early disclosure would avoid the need to provide it later when employees "seek ways to get it one way or the other" in connection with various RIF appeal processes.

    b. The Employer’s Position

    The Employer proposes the following:

The Employer will provide employees in a competitive area in which a RIF is anticipated with a summary of relevant information concerning their own tenure group, veteran’s preference, length of service, and performance ratings utilized in determining their competitive standing.

It is proposing that employees receive the same summary statement information that the parties agreed to in their Pre-RIF Agreement. The purpose for this was to permit employees to review and verify the information which determines their retention standing. The Union is now proposing a second "much more burdensome" process than the one contained in the Pre-RIF Agreement, which should be rejected because it is "overly expansive and unreasonable." In this regard, the Employer would have to provide all employees in a competitive area who are at or below the highest graded position the information indicated, even though "the majority of these employees will not even be impacted by the RIF," and would have no need for it. It also "makes little sense" to inform employees of all the positions for which they may qualify because they may have no actual assignment rights to those positions, yet this is what the Union is demanding. The part of its proposal requiring that each employee be informed of all the distinguishing characteristics of the various competitive levels within that series, etc., "would be nearly impossible to accomplish, as the Agency has no data base from which to download the information." Thus, each summary statement would have to be researched and prepared individually. Since some of the information is based on the knowledge and expertise of the Agency’s classifiers, it "cannot be readily translated into written form." The proposal’s requirement that each employee be provided with data based on her or his appointing office and classification series also would be "enormously burdensome and time consuming," as would its requirement that each employee be informed of all the positions to which the employee can bump or retreat. Given the fact that employees who are somehow wrongly impacted have post-RIF appeal rights, it is "completely unreasonable" to expect the Agency to undergo the "arduous process" proposed by the Union when the majority of employees will not be affected by the RIF.

    The Union’s proposal is also unnecessary, as the parties "have already worked out what appears to be a compromise." In this regard, the Agency has agreed to meet with each employee who received a CES or impact letter to discuss the RIF process, and other matters specific to the employee. Finally, it has been the Agency’s experience, at least with respect to adverse action appeals, that no matter what information employees receive prior to separation, they request the same information again during discovery. Therefore, the Union’s argument that adoption of its proposal would permit employees to point out inconsistencies in the summary statement information and reduce the burden and scope of discovery during post-RIF appeals is "highly suspect."

    The Arbitrator adopts the Employer's proposal. Contrary to the Union's assertion, the Employer has insistently offered reasons for concluding that the Union's proposal is burdensome beyond what can be justified by its ostensible purpose. The information described in items one and two on the Union's list is not retrievable from the automated data system and would have to be manually documented or extracted, in the instance of the second item, using more than one source. This burden might be reasonable if the Union's proposal was focused on employees likely to be impacted by the RIF, since the Employer would presumably need to be prepared with this documentation for this group of employees and there would be a direct benefit to the employees. But the Union's proposal requires extensive, manually derived competitive level information, and identification of bump and retreat opportunities, for a much wider group that includes many employees not in line to be reached by the RIF. That burden cannot be justified by the benefit created.

    According to Union hearing exhibit 21, the Employer has agreed in writing that any employee receiving a CES notice as a result of the mock RIF will be given the opportunity to an individual session with a manager or personnelist to discuss the specific circumstances surrounding the employee's standing on the retention register. The letter setting out this agreement states that "[m]anagement is in agreement that employees should be afforded the opportunity to receive the appropriate information to make informed career decisions," which certainly suggests that the opportunity to receive the information will come before the decision is necessary (Union hearing exhibit 21). Also, under the Employer proposal (IIB1) adopted in the following section of this Award (Issue #47), employees will be advised of their competitive level, the Union will be given the Competitive Level Catalogs to assist in advising employees, and employees, with their representatives, are entitled to meet with management for an explanation of their competitive level assignment. Thus, declining to adopt the Union proposal does not leave employees with a "need to know" without avenues for finding out the basis of the decisions having an impact on them.

35. ISSUE #47 (Union § 8 A, para. 2; Employer § II D 6.a., minus sent.1, and § II B 1, para. 1, last two sent.)

Union Statement of the Issue:

What form of due process will the employees be provided in order to respond to the information in the summary statement?

Employer Statement of the Issue:

What process will the employees be provided in order to challenge information in the summary statement?

a. The Union’s Position

The Union proposes the following:

This statement will be provided to the employee no less than 45 days prior to the issuance of the specific RIF notice. Upon receipt of this statement or summary notice, the employee may present an oral or written reply within 15 calendar days. Employees will be given a reasonable amount of official time, normally 4 hours, to meet with their representative and prepare a reply. Within 30 calendar days of the reply, the Employer will issue a final written decision regarding the challenge. The final decision will address the factor(s) claimed to be erroneous and state the reasons or grounds for the decision. It will also describe the employees’ right to also file a classification appeal to challenge this issue. The procedures used to deliver the oral and written reply will be the same as those used for oral and written replies to proposed discipline as described in the parties’ term agreements.

Its wording should be adopted because it imposes "some minor form of due process protections for RIF’d employees," protections which are required when "taking" their property or jobs. Because the Union is likely to seek an injunction against the RIF if the Arbitrator fails to provide "any form of due process," its adoption would also be "wise" by "protecting the IRS and the Government from whatever harm flows from a court order to stay and/or restart the RIF." It also helps the Employer "ensure that the data it is using are correct," a necessity given the many errors which were uncovered during the early data collection process. Its proposal for challenging the data and related conclusions is "a mirror of the disciplinary oral reply process" already very familiar to the IRS. Moreover, adoption of the Employer’s proposal, which would deny employees an explanation regarding any errors the employee might have found in the original summary statement, could result in unnecessary costs to both employees and the Government if the employee hires a private attorney to challenge this issue at MSPB only to find that "the Agency had documents the employee did not." Because the FLRA has held that a due process right exists in connection with disciplinary actions, adoption of the Employer’s proposal also would "raise the idea" that "another entity of the FLRA" holds that it does not attach to a termination. In this regard, the Union urges the Arbitrator to take note of an MSPB decision in reaching a conclusion on this issue, which states: "A man is going to lose his job, his means of support. At such times it is not unreasonable that he ask his superiors to exercise care and use every available and reasonable means open to secure a just and honorable decision."⁽³⁶⁾

    The Employer’s proposal also violates the due process clause of the Constitution. In this regard, "the courts have consistently held that -- except in truly extraordinary circumstances -- the due process clause requires notice and an opportunity to respond before an individual is deprived of a significant property interest." In a RIF situation, the taking of a Federal employee’s position is a denial of property triggering Constitutional protections. The "root requirement" of the due process clause is that an individual is entitled to a hearing prior to being deprived of a significant property interest. As just pointed out, the Employer’s proposal gives the generally lower-graded employees who will be affected by the RIF no guarantee that rejected challenges to the accuracy of the data would be explained. Finally, review of a recent Supreme Court ruling shows that although it declined to expand the concept of due process to emergency suspensions, "it reaffirmed when it is necessary to protect terminated public employees and a RIF situation seems to meet all those criteria." The Court also observed that for a termination, "the only meaningful opportunity to invoke the discretion of the decision maker is likely to be before the termination takes effect."

    b. The Employer’s Position

    The Employer proposes the following:

At the same time, employees will be provided access to their OPFs and EPFs to enable them to verify or correct the summary within 15 working days of receipt. (However, this entitlement to the employee’s file will in no way diminish the employee’s right to receive the files sooner if requested under another authority.) Employees challenging any information contained within the notice will have 15 calendar days to submit evidence to support their challenge; however they are free to submit a challenge at any time under the law or contract, as appropriate. After updating, new summary notices will be sent to employees who have requested changes before a retention register is issued. Employees will be given a reasonable amount of administrative time to meet with their Union representatives to review their OPFs and EPFs and to discuss the accuracy of the data.

Each employee who receives a RIF notice will be told their competitive level and NTEU Chapters will be provided with Competitive Level Catalogs to make available to employees. Employees and their representatives may meet with management or its representatives for explanations as to why the employee is in a specific competitive level.

The process it proposes for allowing employees to review their OPFs and EPFs to verify the information contained in the Agency’s proposed summary statement, and to challenge it by submitting evidence, is the same as that "negotiated and agreed to by the parties in their pre-RIF Agreement;" this verification process, in fact, has already been applied twice. In comparison, the Union’s proposed process "is akin to that required in adverse action proceedings," and includes, among other things, a requirement that the Agency provide a final decision in writing regarding any employee oral or written challenges to the information contained in the summary statements. Its adoption would be "unnecessary" and "overly burdensome" to the Agency, given that it would delay the RIF "until sometime in the next fiscal year" because some 18,000 bargaining-unit employees would be subject to it. In addition, the Union’s "5th Amendment" argument is "flawed." Even assuming that employees are entitled to some form of pre-termination due process, its proposal is "overly broad" since it applies equally to employees facing separation and those unaffected by the RIF. More significantly, the courts have consistently ruled that neither Government wide RIF regulations nor the 5th Amendment entitle employees facing RIF-separation to any pre-termination right to reply to the proposed RIF. All that is required is that employees be given pre-termination notice and an opportunity to respond, and "adequate post-termination relief," requirements with which the Employer’s proposal is fully consistent. Finally, because the Union is likely to appeal the Arbitrator’s Opinion and Decision on Constitutional grounds even if its own proposal is adopted, "little heed" should be paid to the Union’s due process assertions.

    The Arbitrator adopts the Employer's proposal. Looking at the merits, the oral reply process outlined in Union section 8A makes little sense when the summary notice language being ordered herein is not the Union's overly-broad alternative, but the more simple summary in Employer IID6a which sets out tenure group, veteran's preference, length of service, and performance ratings used in crediting performance. Under the Employer proposal, the employee has 15 days to challenge information in the summary notice, and given the type of information that it is, limiting employees to written evidence is reasonable. Employees are also given administrative time to review their files and consult with the Union. A separate section (Employer IIB1, grouped in this same issue), ensures that employees receiving a RIF notice will be informed of their competitive level assignment and given the opportunity to meet with management to learn the basis for that assignment, which gives employees a pre-termination opportunity to review the competitive level determination.

    Beyond the merits, the Union urges the Arbitrator to adopt its proposal to provide a form of due process that it believes is Constitutionally mandated. This action, it submits, would obviate the need for a court challenge to establish such a right. Issues of "first impression" raising the consistency of bargaining proposals with legal mandates (which includes the Constitution) are not given to Federal sector interest arbitrators to decide. Government wide RIF regulations do not now include, nor have they ever included to the Arbitrator's knowledge, the kind of pre-termination due process that the Union argues is mandated and there is no case law for the Arbitrator to apply which establishes that right in a RIF, which is the only apposite case.

36. ISSUE #48 (Union § 8 A, para. 2, sent. 3; Employer § II D 6)

How much official time or admin. leave will be provided to employees to clarify their records?

a. The Union’s Position

The Union proposes the following:

Employees will be given a reasonable amount of official time, normally 4 hours, to meet with their representative and prepare a reply.

By providing a benchmark of 4 hours for what would constitute a reasonable amount of administrative time for employees to review their records, disputes over the matter should be minimized. Under the Employer’s proposed wording, however, there could be "several hundred disputes over what amount of time is reasonable" because the parties have never experienced this exact situation before. Arbitrators could then award retroactive administrative time (and associated salaries) to employees who are already off the rolls, an "unfortunate situation." Four hours was selected by the Union because NORD IV provides the same approach to preparing employee rebuttals or challenges to performance appraisals, and it has been working well in that context.

    b. The Employer’s Position

    The Employer proposes the following:

Employees will be given a reasonable amount of administrative time to meet with their Union representatives to review their OPFs and EPFs and to discuss the accuracy of the data.

Because of the linkage between the parties’ proposals on this issue, and the previous issue regarding summary statements and the ensuing process for challenging the information contained in them, regardless of whose position the Arbitrator adopts, both should be imposed as a package. Accordingly, if the Arbitrator selects the Union’s proposal on the previous issue, the Employer would accept the Union’s proposal on this issue as well. On the other hand, if the Arbitrator imposes the Employer’s proposal on the previous issue, she should likewise adopt its proposal on this issue.

    The Arbitrator adopts the Union's proposal. Eliminating one potential subject of dispute between these parties seems worthwhile. However, it is suggested that the parties conform the language to the Employer proposal adopted in Issue #48 for the sake of clarity.

37. ISSUE #50 (Union § 8 B; Employer § II B 1, second to last sentence, and § II B 3)

What access shall the Union have to information about competitive levels and how employees are distributed across them, and when shall it be provided?

a. The Union’s Position

The Union proposes the following:

The Union will be provided competitive level information showing all the levels within each series, the definition and distinguishing characteristics of the various levels in their series, the minimum qualifications for each level, all employees in that appointing office considered to be in each level and based on what documents, e.g., position descriptions, critical elements, etc. This information will be given to the Union at least 5 days prior to the distribution of similar information to the employees pursuant to subsection A above.

Although the Employer has provided it with several revisions of its catalogue of competitive levels, most of the information requested in the Union’s proposal is not contained within it. In this regard, all of the requested information went into their determination of competitive levels, and providing it to the Union would not result in any hardship to the Employer. Receipt of the information is necessary for the Union to decide whether to challenge its competitive level determinations, and to help Union stewards answer questions from RIF’d employees. The latter would permit stewards to head off questions which might otherwise come to management. Because MSPB case law "places a burden on the employer to justify its choice of competitive levels," the Employer will be required to reveal the data ultimately anyway. Therefore, adoption of its proposal would also prevent the Union from filing ULP charges against the IRS if it fails to provide the requested information by the time Notices of RIF are distributed, "as well as a stream of interrogatories in connection with an MSPB appeal."

    b. The Employer’s Position

    The Employer proposes the following:

Each employee who receives a RIF notice will be told their competitive level and NTEU Chapters will be provided with Competitive Level Catalogs to make available to employees.

The Union will be provided with a list of competitive levels prior to their use.

The difference in the parties’ proposals on this issue is whether the Employer should be required to give the Union the minimum qualifications for each competitive level, and all the employees in the appointing office considered to be in each level, along with any documents which served as the basis for these determinations. The Union’s proposal should be rejected because it is "extremely burdensome and unreasonable." This contention is based on the manner in which the competitive level determinations were made, i.e., the Agency convened a group of position classification specialists who, using their particular expertise, compared official position descriptions and the actual duties of positions. While some of the information is "objective," the expertise and knowledge of the classification specialists "cannot be readily reproduced in written form." The position descriptions, critical elements, and qualifications standards have already been provided to the Union, either under the terms of NORD IV or a recent Union request under section 7114 of the Statute; thus, there is no purpose to requiring the Agency to provide this same information again.

    The Arbitrator adopts the Employer's proposal. Although the Union insists that its approach requiring pre-RIF production of detailed information is "win-win" and will circumvent the need for dealing with these matters on a case-by-case basis, the Arbitrator is not convinced that the approach is workable within any reasonable timeframe and perhaps, at all. Much of what the Union wants is available in other ways, albeit more targeted at employees actually slated for RIF, which is appropriate. Review of the competitive level catalogue provided to the Union reflects that it provides a list of competitive levels within each classification series, with the general distinguishing characteristic. The Union is already in possession of position descriptions for all IRS positions and OPM RIF regulations dictate that position descriptions are the documents to be used in determining competitive levels. "Minimum qualifications" are not relevant to competitive level determinations. The record indicates that the substance of the decision-making is not further documented. The Employer described the process by which competitive levels were determined, as a deliberative one conducted by classifiers and subsequent review by personnelists. The Union did not respond to this information. In its proposal adopted in Issue #47 (Employer section IIB1), the Employer is obligated to provide explanations of competitive level assignments to employees receiving RIF notices in face-to-face meetings that include a Union representative.

38. ISSUE #51 (Union § 9)

When, if ever, may the Employer implement the pre-RIF freeze?

a. The Union’s Position

The Union proposes the following:

Once the reply has finished and the Employer has distributed decisions to all who applied, it may freeze the organization in anticipation of the issuance of Specific Notices.

It is appropriate to prevent the organization from being "frozen" until after the Employer has responded to employees’ challenges of any errors they find in the pre-RIF summary statements (see the Union’s proposal in Issue #47) for several reasons. First, it would promote the movement of RIF-threatened employees prior to the RIF, thereby decreasing the need for the RIF or diminishing its impact. In this regard, recent data shows that in some instances "the IRS need place only one more employee to avoid the need to conduct a RIF in that office." Second, the longer the pre-RIF freeze is imposed, the more the harm to the unit and the public. Jobs will go unfilled, and duties will have to be split up among nearby employees; employees due career ladder promotions will have them delayed through no fault of their own, and the public will suffer because "the full-time employee who was supposed to be doing the work has not yet been hired, trained, and moved into the position." Third, the IRS would be provided an incentive to complete the reply process in a timely manner if this is necessary to implement the freeze. Fourth, adoption of the Union’s proposal would "not work a hardship on the Employer of any kind" because it intends to implement a pre-freeze RIF and there is "no apparent reason" why it would do so before it has certified the accuracy of the summary statement data. Finally, there is no merit to the Employer’s contention that the parties’ Pre-RIF agreements bar consideration of its proposal on this, or any other proposal the Union has included in its final offer. On the one hand, the Employer never presented any evidence to support its allegation or to otherwise give the Arbitrator reason to support its position, even though the Arbitrator "directed the parties" to do so in a pre-hearing conference. On the other, the Union provided testimony on bargaining history showing that the Agency previously proposed such wording but failed to obtain the Union’s agreement; it also can point to language in the Pre-RIF I agreement clearly stating that it had the right to continue to advocate its last best offer currently before the Arbitrator despite having signed Pre-RIF I.

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposal should be rejected because it is inconsistent with Amendment Three of the Pre-RIF Agreement, as well as on the merits. In this regard, Amendment Three contains a provision allowing the Agency to impose a freeze 30 calendar days before it issues RIF notices, while under the Union’s current proposed wording, once the preliminary steps it requires have been completed, "the Agency would be free to institute and maintain a freeze as long as it needed to issue RIF notices." Given this lack of consistency, it is unclear which process the Agency must follow. Moreover, having just negotiated a freeze agreement, "the Union should not be permitted to propose yet another freeze time line." The 30-day freeze period contained in Amendment Three is reasonable because it allows sufficient time to stabilize the organization and prevent movement within the competitive areas and commuting areas undergoing a RIF so that the Agency can conduct accurate Round 1 and Round 2 competition. Finally, the Union’s proposal is integrally related to its other proposals on Issues #46 and #47 involving summary statements. Because those proposals are unreasonable on the grounds stated in connection with those issues, its freeze proposal also should not be imposed.

    The Arbitrator declines to adopt the Union's proposal on the merits inasmuch as the Union explained its proposal as directly related to its summary statement proposal. (See, Union's pre-hearing brief: "This issue is related to Issue #47. . . . Assuming there is a reply process, our intent here is to provide that the pre-RIF freeze will not be implemented until the reply process has concluded.") Issue #47 has been resolved by the Arbitrator adopting the Employer's proposal. It is noted that the parties' Pre-Rif Agreement contains a pre-RIF freeze.

39. ISSUE #53 (Union § 10 C, first four sent.; Employer § III C, first two sent.)

How shall the Employer make exceptions to the normal order of release?

a. The Union’s Position

The Union’s proposes the following:

In unusual situations the Employer may make exceptions to the normal order of release provided for in Subsection A in accordance with 5 C.F.R. 351.606, 5 C.F.R. 351.607, and 5 C.F.R. 351.608. Management has determined that all exceptions will be made in a fair and objective manner. When the Employer decides to use an exception, it will notify the Union and all employees impacted by the exception. Exceptions will be implemented on a systematic and uniform basis throughout the country. The notice will include all reasons for the exception as well as a complete rational why the employee chosen was so chosen.

The highlighted portions of its proposal go beyond regulatory requirements by adding to the standards the Employer would follow when making exceptions to the RIF process. Given the "total control" the Employer has in setting competitive areas and levels, and its exercise of that power to "cherry pick" its way through this RIF, there should be no need for the Employer to make any exceptions to the RIF process. Nevertheless, because the regulations appear to provide the Employer with this right as well, "it should be used under strict standards." The standards the Union proposes have already been applied to other subjects covered by the parties’ term agreements, and would stop high level managers from implementing different criteria, or ones that are "totally subjective." If managers are reluctant to make exceptions because of the Union’s proposed criteria "that is fine with us," given the extra benefits this would provide to employees who deserve them by virtue of earned retention standing.

    b. The Employer’s Position

    The Employer proposes the following:

In unusual situations the Employer may make exceptions to the normal order of release provided for in Subsection A in accordance with 5 C.F.R. 351.606, 5 C.F.R. 351.607, and 5 C.F.R. 351.608 and section 634 of the 1997 Appropriations Act. The Employer has determined that only the Regional Commissioners and the Chief Officers, or their equivalents, will be permitted to grant exceptions.

Exceptions to the normal order of release during a RIF are, by their very nature, based on unique circumstances. For example, an exception could occur because an employee is working on a critical computer project which no other employee could take over within 90 days without causing undue interruption to the functioning of the Agency. The Union’s proposal, however, by requiring uniformity and objectivity throughout the IRS when granting exceptions, would appear to require that such decisions be centralized and in the hands of only one person. Given the tight time frames involved when running a RIF, it would be a "tremendous burden" for one person unfamiliar with local circumstances to determine. Moreover, the terms "uniform, systematic, fair, and objective" are vague, and the Agency can foresee having to defend itself against charges that its exception decisions were in error on this basis alone. In contrast, its own proposal restricts the number of individuals empowered to make such decisions "to guarantee as best it can some degree of consistency" within Regions or Chief areas, and would ensure that those who grant exceptions are familiar with the individual facts and circumstances within their areas to make such determinations.

    To be understandable, Issues #53 and #54 have to be considered together. The Employer's proposal on each issue is adopted. Exceptions to the normal order of release are governed by OPM regulations which set out the circumstances in which exceptions can be granted. (See Module 3, Unit A, Section 17). The Employer's proposal basically incorporates the approach to exceptions taken by OPM. This approach is not without standards for granting exceptions. Exceptions can be made upon a determination that no higher standing employee can take over the position without "undue interruption to the agency," or to retain an employee who is using accrued annual leave to attain retirement or health benefits eligibility. Justifying these circumstances is going to depend upon on the particular circumstances involved.

    Given the above, the requirement in the Union's proposal that exceptions "be implemented on a systematic and uniform basis throughout the country" is not understandable. As to the Union's other standard, "fair and objective," in response to a RIF appeal by an impacted employee an agency has the burden of proving that it has properly applied RIF procedures and acted "uniformly." The Union proposal also requires an opportunity for employees to assert their readiness to assume the same work in a process that involves an oral reply and written management response. (The Employer proposal's more modest notice requirement tracks OPM requirements.) The Employer asserts that nearly all exceptions are for the purpose of creating eligibility for retirement, a circumstance making other employees' input irrelevant. It also points out that the Union's proposed reply process would halt the RIF for an entire competitive area. These statements were not challenged or addressed by the Union. The Arbitrator is unpersuaded that the Union has considered and, in its proposal, taken into account the less obvious ramifications of its proposal.

40. ISSUE #54 (Union § 10 C, last three sent.; Employer § III C, last two sent.)

What process will be provided to employees claiming a right to be terminated in retention order absent the assertion of an exception by the Employer?

a. The Union’s Position

The Union proposes the following:

All employees passed over will have an opportunity to assert and demonstrate their readiness to perform the same work. Moreover, they will be given a notice and opportunity to respond orally and in writing prior to being passed over. This response will be replied to before the employee is passed over and all procedural issues will be identical to those provided for oral and written replies to disciplinary action under the parties’ term agreements.

If the Employer decides to grant an exception in favor of someone with a lower retention standing "up to another 90 days of salary and employment" is at stake for the passed-over employees. Given these consequences, it is reasonable to permit such employees to reply to the decision, including the right to argue that they have the ability to do the work. This should not involve any hardship for management because it is the Employer’s decision to impose an exception in the first place. Hence, "if the exceptions are kept to a minimum, the replies will also be." Such replies and subsequent Employer review could be scheduled quickly. The right to reply is appropriate, particularly compared to other employment events which provide Federal employees with similar rights. In addition, the Employer also gains because mistakes in initial judgements may be caught, saving subsequent embarrassment and potential back pay and attorney fees if the employee successfully appeals to MSPB or an arbitrator. The "few hours" of management’s time that its proposal would require in listening to and answering a reply "seems like an excellent investment for the Government." This is yet another area where the due process question raised previously by the Union also applies.

    b. The Employer’s Position

    The Employer proposes the following:

When the Employer decides to use an exception of 30 days or more, it will notify the Union and all employees impacted by the exception in accordance with 5 C.F.R. 351.608(e). The notice will include all reasons for the exception as well as a complete rationale why the employee chosen was so chosen.

Its proposal merely restates the requirements of the RIF regulations when a higher standing employee is released before a lower standing employee due to the granting of an exception. Under the regulation, the higher standing employee has a post-separation right to appeal or grieve the RIF action. The Union’s proposal, on the other hand, would add to the regulatory requirements a right for the higher standing employee to assert and demonstrate readiness to perform the same work, as well as a 30-day advance written notice of the exception, an opportunity to respond orally and in writing, and a requirement that the Agency respond in writing to the employee before separation occurs. The Union’s pre-termination process "makes very little sense" because "approximately 90 percent" of the exceptions are granted to permit employees who are within reach of retirement eligibility to remain on an agency’s roles on annual leave past the effective date of the RIF until such time as they reach retirement eligibility. When exceptions are granted to prevent undue interruption of a function, on the other hand, the Union’s proposed pre-termination notice and reply requirement "only serves to delay the entire RIF process," since such an appeal would mean that no related RIF actions could be processed until the appeal is settled.

    For the reasons set forth under Issue #53, the Employer's proposal is adopted.

41. ISSUE #55 (Union § 10 D 1, last sent.)

What right, if any, will an employee have to a voluntary downgrade prior to a RIF?

a. The Union’s Position

The Union proposes the following:

The Employer will accept any request for a voluntary downgrade made in the 5 days prior to a RIF and for the purposes of improving an employee’s chances of retention.⁽³⁷⁾

Under current RIF regulations, an employee may be informed that if she remains in her current position, there will be no position into which she can bump or retreat because she has no right to positions more than three grades below the position from which she was released. Its proposal would require the Employer to downgrade any employee who requests it, under the circumstances presented, so that the employee could bump or retreat into a lower graded position. Moreover, it could permit an employee who otherwise would be entitled only to a less desirable position at the current grade to avoid this outcome. In addition to the obvious benefit to the affected employee of providing "an element of choice," the proposal (similar to its proposal on Issue #63) has the potential to help the Employer fill a job where it may "otherwise have to use a full recruiting effort to select a new hire." Hence, it represents another "win-win" situation for the parties.

    b. The Employer’s Position

    The Employer has no counterproposal. The Union’s proposal requires the Employer to allow any employee, upon request, to take a voluntary downgrade prior to a RIF without regard to whether (1) there is a vacancy, (2) the Employer has determined to fill the vacancy, and (3) the employee is qualified for the vacant position. Thus, the proposal interferes with management’s rights to assign employees under section 7106(a)(2)(A) and to make selections under section 7106(a)(2)(C).⁽³⁸⁾ Even if the proposal is interpreted to apply only in circumstances where the Employer decides to fill vacancies, the proposal is nonnegotiable because it requires that vacancies be filled regardless of the qualification of employees requesting the downgrade; specifically, the proposal infringes on management right to make selections under section 7106(a)(2)(C), which includes the right to make qualification determinations.⁽³⁹⁾

    The Union’s proposal is also unclear regarding when the 5 days begin within which the downgrades would be permitted. If it is the 5-day period prior to separation, the proposal would violate the RIF regulations, which specify that all vacancies an agency determines to fill during a RIF must occur using the bump and retreat process (5 C.F.R. 351.201(b)). If it is the 5-day period prior to the issuance of RIF notices, it is "unreasonable and inconsistent with other Union proposals and Amendment Three to the Pre-RIF Agreement." Among other things, it would conflict with the freezing of the organization that must occur a reasonable period prior to the issuance of the notices; consequently, "the planning of the RIF would be undone." It also provides no guarantees that an employee electing to take a voluntary downgrade would not be bumped from the lower-graded position she would qualify for by another employee with superior bump or retreat rights. Finally, the proposal is unnecessary because of the numerous steps the parties have already taken to encourage employees to accept either lateral reassignments or voluntary changes to lower grades to continuing positions elsewhere in the Agency.

    The Arbitrator declines to consider the Union's proposal. The Employer's assertion that the proposal violates management's right to assign and select employees has not been met by the Union with a FLRA case upholding the negotiability of this proposal, which appears to dictate that a downgrade be granted regardless of whether a vacancy in a lower graded position exists, or whether a decision has been made to fill the vacancy. To move forward with the proposal, the Union will have to establish its negotiability before the FLRA. It is noted that in the absence of this proposal, CTAP/CES employees have certain rights under pre-RIF agreements to be selected for lower graded positions. And under this agreement, RIF'ed employees can be offered assignments in lieu of separation to a lower graded position.

42. ISSUE#57 (Union § 10 D 4; Employer § III D 4)

How will an employee impacted by a RIF be assigned during the RIF and how many offers of assignment will the employee receive?

a. The Union’s Position

The Union proposes the following:

The Employer shall offer the employee with the highest retention standing the opportunity to reassign to all positions for which he or she has bump or retreat rights. The employee is free to select the assignment he or she wishes from among these opportunities to which he has rights under law, regulation, and this contract. In selecting employees for assignment, the employee with the highest retention standing among those who have received a RIF notice will be offered the position held before those with lower retention standing. An employee is entitled to no further offers when:

a. They accept an offer;

b. They reject a requested offer; or

c. They fail to reply to an offer within a reasonable time.

Should the Employer insist that it has a management right to assign employees to a specific position, it will do so using highest retention standing among those who volunteer for the vacancy or it will run a merit competition to identify the best candidate prior to making its selection.

Regardless of the parties’ mutually agreed upon issues statement, "the regulations seem to" entitle employees only to one assignment offer, and that is all either party’s proposal would provide. It is "fighting" here to maintain a RIF’d employee’s right to choose which position "she moves into," as opposed to the Employer’s "paternalistic view" that it knows what is best for the employee. Despite the Employer’s attempt to confuse the issue during the arbitration hearing, the Union’s proposal "is no different than nor more complicated than" any bidding system that operates today "in thousands of workplaces" in connection with numerous other types of assignment matters. Under the IRS system, the affected employee could be ordered to report to another post of duty up to 40 miles away, into a job the employee does not like, which does not have as good a career ladder promotion potential as others, and one without AWS/flexiplace rights, or free parking. The Union’s proposal, on the other hand, would give the employee a short period of time to compare options and provide IRS with a list of preferences, and avoids a situation where assignments are chosen by management for subjective reasons. It would also avoid "severe morale problems" flowing from the RIF that would "infect all who are dissatisfied with their assignment." The Employer has never explained why it should not desire the same result. This is particularly odd given that the Employer has already agreed to a similar Union proposal, albeit one applying to "a slightly different situation that comes later in the RIF process" (Issue #61). In addition, the approach the Union advocates is consistent with the parties’ "collective bargaining tradition" to maximize employee choice in the selection of positions, and "is not about how many offers an employee may get," but merely balances the employee’s preferences "against the preferences of others."

    Regarding the Employer’s nonnegotiability arguments, while the Union has already modified its wording to address one of those concerns, the core of the proposal "continues to be that an employee has a right to choose using his or her highest retention standing." In this connection, the RIF regulations already obligate the Employer to reassign employees to other positions, so the Union does not have to force the obligation on the Employer. Because the affected employees have bump and retreat rights to the positions, the Employer cannot require that they retreat to fewer positions than the OPM regulations permit. Thus, the cases cited by the Employer in support of its nonnegotiability allegations are not applicable because they do not concern bump or retreat rights, they "predate current regulations," or they do not concern RIFs.

    b. The Employer’s Position

    The Employer proposes the following:

An employee is entitled to only one (1) offer of assignment. Employees released from their competitive level in Round 1 will be provided assignment rights in retention order and shall be offered the position occupied by the employee with the lowest retention standing. An employee is entitled to no further offers when:

a. They accept an offer;

b. They reject an offer; or

c. They fail to reply to an offer within a reasonable time.

The Union’s revised proposal provides that employees, and not the Employer, would choose the positions to which they will be assigned when there are two or more positions to which they may bump or retreat. It also precludes management from assigning employees to positions where their skills and/or qualifications are best suited. Thus, it is nonnegotiable because it infringes on management’s rights to select which employee to assign to particular positions under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B) of the Statute.⁽⁴⁰⁾ The proposal is not an appropriate arrangement because it leaves the Employer with no discretion in assigning employees; the benefit to employees being reassigned in a RIF does not outweigh the burden imposed on the Employer’s ability to use employees’ skills where they are most needed; therefore, the proposal also excessively interferes with the management rights discussed above.⁽⁴¹⁾

    On the merits of the issue, the key question addressed by the parties’ vastly divergent proposals is what process to use when an employee has assignment rights to more than one "best offer," i.e., the position which is closest in salary to the former position. In this regard, unlike the Employer’s proposal, the Union’s "is extremely disruptive and does not preserve seniority." In essence, because of the RIF regulations pertaining to bumping assignments, providing employees with more than one best offer the right to choose which position to select could result in the bumping of the more senior employees within a subgroup, rather than those with less experience. Moreover, those more senior employees could not subsequently bump employees within the same subgroup who are less senior because "employees can only bump into positions occupied by employees in a lower tenure group or subgroup." In addition, the second paragraph of the Union’s proposal is "extremely obscure," and could apply to Round 1 competition. If this is the case, "the proposal essentially permits employees unaffected by the RIF" to nevertheless compete for new jobs, a process which would create "needless disruption" within the Agency at a time when it is trying to place employees who are truly adversely affected. Finally, not only could the process proposed by the Union "take up to 1 year to complete," depending on the number of employees being separated and the 5 workdays each employee would be given to choose their positions, but it also would permit employees to "personalize" the selection of positions "based on improper motives."

    The Union is proposing a quite dramatically different RIF process in which the Employer does not determine the position to which an employee will be assigned in exercise of bump and retreat rights but instead employees released from their competitive levels select from among positions to which they have bump or retreat rights. This "choice" option is presented as an unmitigated good, and an efficient method of running a RIF. However, the Arbitrator has thought carefully about the ramifications of imposing a new and untested RIF procedure where release decisions are not by operation of "objective" rules but "personalized" so that employee A is not exposed to RIF separation because she had lower retention standing than Employee B and held a job with the closest representative rate and best matching B's qualifications. She is losing her job because Employee B preferred it over other options. While we presume good faith on every employee's part, how does such a system guard against preferences being exercised for mean, petty, or other improper reasons? The Union would say that managers can personalize assignment decision and consider improper factors. But at least management assignments are subject to review for consistency with RIF regulations. Do employees have to answer for the reasons for their preference selections if a RIF appeal is made by someone who is adversely affected under the Union's process but would have been untouched under the Employer's?

    The legal and policy framework surrounding the conduct of RIFs in the Federal Government is elaborate. The Union has not described any instance where a procedure such as it proposes has been adopted or utilized in the Federal workplace (or anywhere) for a RIF. Letting employees bid and choose for overtime and reassignment is one thing. Letting them pick which employees will remain employed and which will not, is another.

    Beyond this broader policy issue, there are problems raised by the proposal's confusing language. Inevitably, it seems, there could be time-consuming "cascading effects" if Employee A (to use the above example), in turn, had bump and retreat rights, so that another round of preferences had to be entertained, and so forth. This is not acknowledged by the Union in describing the efficiency of its approach. Also, the sentence beginning "Should the employer insist" remains opaque despite Union explanations, referring to a bidding process for a "vacancy" when bumping refers to moving into an encumbered position. Also offering a merit competition alternative for filling vacancies is not permitted during a RIF. The Employer raises another problem with the potential it sees for the Union's "choice" process to cause the bumping of a more senior employee who could have nowhere to go. And it is possible to read the language as involving employees not impacted by the RIF in a "bidding" process for positions, a situation which could dilute the opportunities for employees facing drastic outcomes. The Arbitrator refers again to the concerns expressed at Issue #10. Finally, if the proposal means that preference is intended to supplant a management decision on placement upon release in Round 1 of the RIF, it raises negotiability issues. The Union has provided no case decided by the FLRA which finds a proposal similar to this one negotiable, while the cases "on the books" suggest a contrary view.

    Based upon the above considerations, the Arbitrator adopts the Employer's proposal which restates the basic RIF rules and makes selection by retention standing controlling.

next: Issues 62 through 79

previous: Issues 16 through 39

Issues 1 through 15

33.The "final offer" authority of the Arbitrator requires adoption of one or the other of the parties's proposals "if otherwise legal". Both parties' proposals contain inconsistencies with OPM regulations. A simple severing of problematic language in the Union proposal permits adoption of a proposal to resolve this issue.

34.In this regard, the Union contests the Employer’s interpretation of McMahon v. Department of the Army, 84 FMSR 5445 (1984).

35.The Employer provides citations to MSPB case law in support of these contentions.

36.Ray v. Department of the Air Force, 3 MSPR 445 (1980).

37.On this issue, the undersigned sustained the Employer’s objection to the Union’s revised proposal because it violated the terms of a previous Panel directive.

38.The Employer cites numerous FLRA cases in support of this contention, among them KANG, cited in footnote 12.

39.Again, the Employer supports its allegation by citing to KANG, as well as Association of Civilian Technicians, New York State Council and Department of Defense, National Guard Bureau, State of New York, 45 FLRA 17, 20 (1992), among others.

40.In support of its nonnegotiability allegations, the Employer cites American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 627 (1980); American Federation of Government Employees, AFL-CIO, Council 214 and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 8 FLRA 425, 426-427 (1982); and Department of Defense, Office of Dependent Schools and Overseas Education Association, 28 FLRA 871, 879-881 (1987).

41.In this regard, the Employer refers to National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 47 FLRA 370, 387 (1993).