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 31 FLRA NO. 77

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
LOCAL 2663

                    Union

      and

VETERANS ADMINISTRATION
MEDICAL CENTER, KANSAS CITY
MISSOURI

                    Agency

                                      Case No. 0-NG-1477

          DECISION AND ORDER ON NEGOTIABILITY ISSUES

     I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(E) of the Federal Service
Labor - Management Relations Statute (the Statute) and concerns
the negotiability of two proposals. The proposals concern the
Agency's requirement that employees who come into contact with
disturbed patients complete the "Management of Disturbed Behavior
Workshop." The first proposal requires the Agency to return
employees, who had been reassigned because of unsuccessful
performance in the training, to their previous assignment. The
second proposal requires that employees be given the training
prior to being assigned to work in designated areas. We find that
both of the proposals are nonnegotiable because they interfere
with the Agency's right under section 7106(a)(2)(A) to assign
employees. Proposal 2 also interferes with the Agency's right
under section 7106(a)(2)(B) to assign work.

     II. Proposal 1

     All Employees affected by previous classes will be returned
     to their previously assigned work area immediately and receive
     two more chances to pass the instruction under discussion.


     A. Positions of the Parties 1/

     The Union states that this proposal is intended to give
employees, who were reassigned prior to negotiations and as a
consequence of the Agency's training requirement, a further
opportunity to successfully complete the training so that they
might benefit from whatever guidelines emerge from negotiations
between the parties. The Agency contends that this proposal is in
response to the Agency's having reassigned an employee, who had
failed the course twice, out of the psychiatric unit. The Agency
argues that by requiring it to rescind the reassignment and
return the employee to the psychiatric unit, the proposal
interferes with the Agency's exercise of its right under section
7106(a)(2)(A) to assign employees.

     B. Analysis and Conclusion

     Under section 7106(a)(2)(A), an agency retains discretion to
determine the personnel requirements of the work of a position,
that is, the qualifications and skills needed to do the work as
well as job-related individual characteristics. The right to
assign an employee to a position includes the discretion to
determine whether an employee meets those qualifications. See,
for example, American Federation of Government Employees, AFL -
CIO and Air Force Logistics Command, Wright - Patterson Air Force
Base, Ohio, 2 FLRA  604, 613 (1980), aff'd sub nom. Department of
Defense v. FLRA,  659 F.2d 1140 (D.C. Cir. 1981), cert. denied,
455 U.S. 945 (1982).

     This proposal requires the Agency to rescind its assignment
of an employee to a position outside of the psychiatric unit and
to reassign the employee to a position in that unit, even though
the Agency had determined that the employee lacked the skills and
qualifications necessary for such an assignment. The proposal
thereby interferes with the Agency's exercise of its right to
assign employees. See Naval Undersea Warfare Engineering Station,
Keyport, Washington and International Association of Machinists
and Aerospace Workers, Local 282, 22 FLRA  957 (1986).

     The Agency argues further that this proposal excessively
interferes with its right to assign employees and is, therefore,
not an appropriate arrangement for adversely affected employees
under section 7106(b)(3). 

     However, the Union has neither claimed that this proposal is
negotiable as an appropriate arrangement under section 7106(b)
(3) nor provided support for such a claim. 2/ Therefore, we find
it unnecessary to reach that issue. See National Association of
Government Employees Local R14-87 and Kansas Army National Guard,
21 FLRA  24 (1986).

     Accordingly, we find that Proposal 1 is not within the duty
to bargain.

     III. Proposal 2

     No Employee (excluding those presently working in
     Psychiatry, Day Hosp., ADTU, or Emergency Room) will be allowed
     to work in these areas without having completed this mandatory
     training.

     A. Positions of the Parties

     The Union states that this proposal reflects an assertion
made by the Agency that no one should work in the designated
areas without training in the management of disturbed behavior.
The Union contends that this proposal concerns employee and
patient safety rather than the Agency's right to assign
employees.

     The Agency contends that this proposal excessively
interferes with its right to assign work under section
7106(a)(2)(B) of the Statute. It contends that the proposal
requires it to assign specific training and conditions the
assignment of employees on the completion of that training.

     B. Analysis and Conclusions

     This proposal prohibits the Agency from assigning employees
who have not completed the "Management of Disturbed Behavior
Workshop" to work in designated areas. Like Proposal 1, it also
would affect the Agency's ability to assign employees to
positions in those areas. Consequently, we will consider whether
the proposal interferes with the right to assign employees under
section [PAGE 3] 7106(a)(2)(A) as well as the right to assign
work under section 7106(a)(2)(B), on which the Agency relies.

     The right under section 7106(a)(2)(A) to assign employees
includes the discretion to determine (1) the personnel
requirements of the work of a position and (2) whether a
particular employee meets those qualifications. See, for example,
American Federation of Government Employees, AFL - CIO and Air
Force Logistics Command Wright - Patterson Air Force Base, Ohio,
2 FLRA  604, 613 (1980), aff'd sub nom. Department of Defense v.
FLRA,  659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945
(1982). The same discretion is inherent in the right under
section 7106(a)(2)(B) to assign work. Laborers International
Union of North America, AFL - CIO, Local 1276 and Veterans
Administration, National Cemetery Office, San Francisco,
California, 9 FLRA  703 (1982).

     Proposal 2 prohibits the Agency from assigning employees to
certain positions and duties unless they have completed the
"Management of Disturbed Behavior Workshop." Therefore, the
proposal interferes with the Agency's discretion to determine the
personnel requirements of the work and whether an employee meets
those qualifications. Placing such a restriction on the Agency's
discretion to make assignments directly interferes with its
ability to determine the particular employees who will be
assigned to particular positions and duties within the Agency.
See American Federation of Government Employees, AFL - CIO,
Council of Prison Locals, Local 1661 and U.S. Department of
Justice, Federal Bureau of Prisons, Federal Correctional
Institution, Danbury, Connecticut, 29  FLRA  990 (1987) (Proposal
21), petition for review as to other matters filed sub nom. U.S.
Department of Justice, Federal Bureau of Prisons, Federal
Correctional Institution, Danbury, Connecticut v. FLRA,  No.
87-1762 (D.C. Cir. Dec. 14, 1987).

     As with Proposal 1, the Agency has submitted arguments on
the applicability of section 7106(b)(3) to this proposal. Since
the Union has made no claim that this proposal is a negotiable
appropriate arrangement under that section, we find it
unnecessary to consider that issue.

     We conclude, based on the foregoing, that Proposal 2 is not
within the duty to bargain because it conflicts with the Agency's
rights to assign employees and assign work under section
7106(a)(2)(A) and (B).

     IV. Order

     The Union's petition for review is dismissed.

Issued, Washington, D.C., March 24, 1988.

                       Jerry L. Calhoun,        Chairman

                       Jean McKee,                Member

                       FEDERAL LABOR RELATIONS AUTHORITY



FOOTNOTES

     Footnote 1/ The Union did not file a response to the Agency's
statement of position.

     Footnote 2/ The parties are responsible for creating the
record upon which we will resolve negotiability disputes.
National Federation of Federal Employees, Local 1167 v. FLRA, 
681 F.2d 886 (D.C. Cir. 1982). A party failing to assume this
burden acts at its peril.

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