[ v49 p302 ]
49:0302(28)NG
The decision of the Authority follows:
49 FLRA No. 28
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 3172
(Union)
and
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
MODESTO, CALIFORNIA
(Agency)
0-NG-2131
(48 FLRA 489 (1993))
_____
DECISION AND ORDER ON REQUEST FOR RECONSIDERATION
March 4, 1994
_____
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a Request for Reconsideration filed by the Union under section 2429.17 of the Authority's Rules and Regulations. The Union's request alleges that extraordinary circumstances require the Authority to reconsider its decision in 48 FLRA 489. In that case, the Authority held that Proposal 1 was nonnegotiable because it excessively interfered with the Agency's rights to assign employees and assign work under sections 7106(a)(2)(A) and (B) of the Federal Service Labor-Management Relations Statute (the Statute). We further held that Proposal 2 was nonnegotiable because it excessively interfered with the right to assign employees under section 7106(a)(2)(A) of the Statute.
Subsequent to our decision in 48 FLRA 489, the Union filed its Request for Reconsideration, alleging that it had not been served with a copy of the Agency's statement of position. As a result, the Union claimed that it was materially and substantially hampered in its ability to respond to the Agency's arguments. By letter dated September 30, 1993, the Director of the Authority's Case Control Office ordered the Agency to provide proof that it had served its statement of position on the Union.(1) The Agency failed to respond to the Authority's order. Consequently, by order dated October 26, 1993, the Authority provided the Union with a copy of the Agency's statement of position and granted the Union an opportunity to file a response under section 2424.7(a) of the Authority's Rules and Regulations. The Union timely filed its response.
Pursuant to section 2429.17 of our Rules and Regulations, we find that the Union has established that extraordinary circumstances exist warranting reconsideration of the Authority's decision in 48 FLRA 489. Because the Union did not have a copy of the Agency's statement of position, it was unable to respond to the Agency's contentions before the Authority issued its decision. Accordingly, we grant the Union's request for reconsideration and will, after addressing several preliminary matters, reexamine the negotiability of the proposals based on the record now before us.
For the reasons more fully set forth below, we reaffirm our decision with respect to Proposal 1 and find that it is nonnegotiable because it excessively interferes with the rights to assign employees and assign work under sections 7106(a)(2)(A) and (B) of the Statute. We further find that Proposal 2 is negotiable under section 7106(b)(2) of the Statute. Consequently, we reverse that portion of 48 FLRA 489 finding that Proposal 2 was nonnegotiable.
II. Preliminary Matters
The Union argues that the Authority should not consider the Agency's statement of position because it was not timely filed and because it was never served on the Union. As to the first contention, the Union claims that there is no evidence in the record establishing the date on which the statement of position was filed with the Authority. As to the second contention, the Union notes that although the Authority provided the Union with a copy of the statement of position, the Agency never did so, in contravention of Part 2424 of the Authority's Rules and Regulations. According to the Union, the Agency's conduct substantially prejudiced the Union.
We reject the Union's argument that we not consider the Agency's statement of position. First, the Authority's records indicate that the Agency filed its statement of position on April 9, 1993. The Union states that its petition for review was served on the Agency on March 10, 1993, and was received by the Agency on March 12, 1993. Pursuant to section 7117(c)(3) of the Statute and sections 2424.6 and 2429.22 of our Rules and Regulations, we find that the statement of position was timely filed within 30 days after the Agency's receipt of the Union's petition for review. Second, although the Agency did not serve a copy of its statement of position on the Union, that fact does not establish that the Union was substantially prejudiced so as to exclude consideration of the statement. The Union was provided with a copy of the statement and was given an opportunity to file a response, which the Authority has considered in granting the Union's request for reconsideration.
The Union further argues that the Agency failed to identify the language contained in the Union's proposals that it alleged was nonnegotiable and, in its statement of position, "identifie[d] only some of the language which was initially included in this appeal." Response at 6. As a result, the Union requests that the Authority find that the Agency has withdrawn its allegations of nonnegotiability with respect to sentences 1-4 of Proposal 1 and all of Proposal 3.(2) Absent such a finding by the Authority, the Union claims that the Agency could declare those matters nonnegotiable at some other time and not fulfill its obligation to bargain in good faith.
As noted in the Authority's decision in 48 FLRA 489, the Agency declared only the last sentence of Proposal 1 nonnegotiable. Thus, the Agency made no allegation of nonnegotiability with respect to sentences 1-4 of Proposal 1. Under section 7117 of the Statute and section 2424.1 of the Authority's Rules and Regulations, the Authority will address a petition for review only where the parties disagree over whether a proposed matter conflicts with law, rule, or regulation. See National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs Medical Center, Newington, Connecticut, 38 FLRA 928, 931 (1990) (VAMC). Insofar as the Agency did not allege that sentences 1-4 of Proposal 1 are inconsistent with law, rule, or regulation, the conditions governing review of those sentences have not been met. Accordingly, there is no reason to address the Union's request regarding those portions of Proposal 1. With respect to Proposal 3, the Agency made no argument in its statement of position that the proposal was nonnegotiable. Consequently, we found that the proposal was not in dispute. There is no basis on which to direct the Agency to withdraw an allegation of nonnegotiability as to that proposal.
We also find that to the extent the Union is attempting to ensure that the Agency fulfill its bargaining obligation under the Statute, such a matter is not appropriately before us in this proceeding. In a negotiability proceeding, the Authority will resolve issues only as to whether proposed matters are negotiable because they are not inconsistent with law, rule, or regulation. Other matters, including those relating to a party's bargaining obligations under the Statute, are more appropriate for resolution in other proceedings before the Authority. See American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984). See also VAMC, 38 FLRA at 931.
Finally, the Union requests that if the Authority finds that portions of Proposals 1 and 2 are negotiable, the Authority should sever those portions "as can be administered independently . . . ." Response at 7. We grant the Union's request with respect to Proposal 2, which contains a number of subsections. However, we deny the request as to Proposal 1 because only one portion of that proposal is properly before us for decision.
III. Proposal 1
Qualification Standards
1. The Employer will provide the Local 3172 President the general qualification standards in writing for the [Disability Unit].
2. The criteria will be solely job-related.
3. The Employer agrees not to set artificial qualification standards for the position being filled in order to circumvent the seniority selection procedures.
4. Qualification standards shall be applied consistently to all affected employees in the District Office.
5. Claims Representatives will rotate into the [Disability Unit] approximately every twelve months.
[Only the underscored language is in dispute.]
A. Positions of the Parties
1. Agency
The Agency argues that section 5 directly interferes with management's rights to assign employees and assign work under sections 7106(a)(2)(A) and (B) of the Statute. The Agency asserts that section 5 prescribes the selection of employees without considering the availability of employees to perform the work and, therefore, "improperly affects the timing of assignment of work to employees." Statement of Position at 3.
The Agency states that in American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587 (1987), the Authority found that the right to assign work includes the right to determine the duration of an assignment. On that basis, the Authority held that a proposal that required the agency to rotate employees was nonnegotiable because it excessively interfered with management's right to assign work. As section 5 of Proposal 1 would require the Agency to limit the duration of assignments to twelve months, the Agency claims that it directly interferes with the exercise of management's right to assign work and assign employees. The Agency also claims that section 5 does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute because it would excessively interfere with those rights.
2. Union
In its petition for review, the Union contended that section 5 is a procedure "by which equivalent employees who perform equivalent work will be assigned to perform that work." Petition for Review at 4. The Union claimed that the Authority has found that such proposals were negotiable in National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696 (1992). Consequently, the Union argued that section 5 did not interfere with any management right. However, if there were such interference, the Union claimed that the proposal constitutes a negotiable appropriate arrangement.
In its response to the Agency's statement of position, the Union notes that the proposal provides for rotation "approximately" every twelve months. In the Union's view, use of the word "approximately" signifies that the Agency would not be required to rotate employees every twelve months. The Union maintains that in American Federation of Government Employees, AFL-CIO, Local 3769 and U.S. Department of Agriculture, Federal Grain Inspection Service, League City Field Office, Texas, 45 FLRA 92 (1992) (Grain Inspection Service), the Authority implied that language that is not absolute is negotiable. The Union further argues that "under Proposal #2 the employer would not be 'locked in' to a particular duration under Proposal #1." Response at 8. According to the Union, the Agency could change the twelve-month rotation period subject to notice and bargaining with the Union. As a result, the Union claims that the proposal does not determine the duration of a work assignment but, rather, is intended "to provide information to bargaining unit members concerning the rotation component of the changes in conditions of employment attendant to [the Agency's] determination to establish a [Disability Unit]." Id. at 9.
With regard to its argument that the proposal is a negotiable appropriate arrangement, the Union claims that employees who are assigned to the Disability Unit "will be required to increase their expertise in processing disability claims[.]" Id. at 13. The Union explains that because employees working in the Disability Unit will be performing work that is substantially different from the work they perform outside the Disability Unit, assignment to the Disability Unit "increases the requirement on employees to quickly adapt to the work to which they are transitioning." Id. The Union adds that after employees have completed their rotations in the Disability Unit, they will have to expend additional effort to familiarize themselves with the changes in procedures, regulations, office policies, and processing systems that have occurred in the non-Disability Unit area. The Union also states that for those employees who are detailed to the Disability Unit, added stress and demands are placed on them to reach performance expectations. In the Union's view, the proposal would reduce the adverse effect on employees of being assigned to the Disability Unit "by providing them with a measure of assurance that, unless bona fide business needs arise, the employee will be returned within a reasonable period to the general work that the employee is required to keep 'current' on in order to progress in the organization." Id. at 14.
B. Analysis and Conclusions
In 48 FLRA 489, we found that the proposal directly interfered with management's rights to assign employees and assign work under sections 7106(a)(2)(A) and (B) of the Statute and that it did not constitute a negotiable procedure. In reaching that result, we noted that the Agency's objection was limited to the requirement in section 5 that claims representatives rotate into the Disability Unit approximately every twelve months. We stated that inherent in the right to assign employees is the right to determine when a work assignment should begin and end and concluded that section 5 directly interfered with management's right to assign employees by prescribing a mandatory rotation period. We also concluded that section 5 directly interfered with the right to assign work by limiting the duration of assignments to the Disability Unit to approximately twelve months.
The Union now argues that use of the term "approximately" signifies that the Agency would not be required to rotate employees every twelve months and that such qualifying language renders the proposal negotiable. The Union also states that the Agency would not be obligated to adhere to a twelve-month rotation period, by virtue of Proposal 2, because the Agency could change the duration of the rotation period after bargaining with the Union. Finally, the Union maintains that Proposal 1 is designed merely to provide information to employees regarding the rotation policy.
We reject the Union's contentions. First, use of the term "approximately" does not render the proposal negotiable. In Grain Inspection Service, on which the Union relies, the Authority found that a proposal that would have precluded the Agency from assigning employees to work more than 12 hours in a 24-hour period, absent certain circumstances, and which would have guaranteed employees 10 consecutive hours off duty between certain work assignments, directly and excessively interfered with the agency's right to assign work under section 7106(a)(2)(B) of the Statute. Nowhere in that decision did we state that language that is not absolute is negotiable, as the Union claims. Indeed, the Authority previously has stated that the use of certain qualifying language does not eliminate the direct interference between a proposal and the exercise of particular management rights. See, for example, American Federation of Government Employees, Local 1760 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region II, 46 FLRA 1285, 1288-89 (1993) (provision requiring agency to make every attempt to secure replacement for employees to allow them to take breaks found nonnegotiable as it directly interfered with the right to assign work); National Association of Government Employees, Local R5-82 and U.S. Department of the Navy, Navy Exchange, Naval Air Station, Jacksonville, Florida, 43 FLRA 25, 37-40 (1991) (provision stating that details will not "normally" exceed 3 months found to directly interfere with the right to assign employees; however, the provision was found to be negotiable as an appropriate arrangement). Compare American Federation of Government Employees, AFL-CIO, Local 1426 and Department of the Army, Fort Sheridan, Illinois, 34 FLRA 716, 720 (1990) (Fort Sheridan) (proposal that simply required the agency to consider the timing of prior offenses was found negotiable because it did not require the agency to act in any particular manner and, therefore, it did not directly interfere with management's right to discipline employees).
Second, although the Union maintains that under Proposal 2, the Agency would not be "locked in" to a particular rotation period under Proposal 1, we see nothing in Proposal 2 that would give the Agency flexibility in determining the duration of the rotation. Response at 8. To the contrary, Proposal 2 reiterates the twelve-month rotation period. Third, we see nothing in Proposal 1 that supports the Union's view that it is intended to provide information to employees. Rather, for the reasons set forth above, and more fully in our decision in 48 FLRA 489, we find that the proposal would impermissibly prescribe a mandatory rotation period and limit the duration of work assignments.
Next, we address the Union's contention that the proposal is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.(3) In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG), the Authority established an analytical framework for determining whether a proposal constitutes an appropriate arrangement. First, we determine whether the proposal constitutes an arrangement for employees adversely affected by the exercise of a management right. To do this, we ascertain whether the proposal in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management's rights. See National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA No. 24 (1994) (Member Armendariz, concurring in part and dissenting in relevant part). Second, if we conclude that the proposal is an arrangement, we then determine whether the proposal is appropriate, or inappropriate because it excessively interferes with the exercise of a management right. We make this determination by weighing "the competing practical needs of employees and managers" to ascertain whether the benefit to employees flowing from the proposal outweighs the proposal's burden on the exercise of the management right or rights involved. KANG, 21 FLRA at 31-32.
Even assuming that the proposal constitutes an arrangement for adversely affected employees, we find that the proposal is nonnegotiable because it would excessively interfere with management's rights to assign employees and assign work. In reaching this result, we note that the proposal would afford some benefit to employees in knowing how long they would be assigned to the Disability Unit. Employees would then be able to take whatever measures are appropriate to keep apprised of changes outside the Disability Unit in order to assist their re-entry into non-Disability Unit work. At the same time, the proposal would provide employees with approximately a twelve-month period in which to develop some expertise in the Disability Unit. While these benefits are significant, in our view they are outweighed by the intrusion on the exercise of management's rights. Thus, the limitation on the Agency's ability to determine the duration of the rotation period could seriously impair the Agency's mission requirements to process disability claims expeditiously. As the Union notes in its reply brief, the Disability Unit was essentially established to address complex disability claims and is premised on the view that "specialization increases output." Response at 13. Given the nature of the work performed in the Disability Unit and the purpose of that unit, we find, on balance, that the benefits afforded to employees under the proposal do not outweigh the intrusive effects on management's rights to assign employees and assign work. Consequently, we conclude that the proposal is nonnegotiable.
IV. Proposal 2
Selection Announcement As It Pertains to Seniority
[P.1, conjunctive paragraphs 1-6]. 1. The Employer shall issue a memo to all qualified employees within the office and distribute the memo to each employee, and post a copy of the memo on the office Bulletin Board, and simultaneously send a copy to the Local 3172 President.
2. All qualified employees will be given an opportunity to volunteer.
3. Employees shall volunteer in writing.
4. Should the number of qualified volunteers exceed the number of positions available, the Employer shall normally select the qualified volunteer with the most seniority. Should there be an insufficient number of volunteers, the Employer shall normally select the qualified employee with the least seniority. Seniority will be determined by time in the current job position in the Modesto office. There shall be a different seniority roster for both Claims Representatives and Claims Development Clerks. The Employer will retain the right to reject a volunteer, after the first twelve months, if that employee was previously assigned in that unit and the Employer determines it necessary to rotate that employee out of the [Disability Unit].
5. If the Employer does not select an employee that would have been selected by seniority or inverse seniority as indicated above, the Employer will provide its reasons in writing to the Local 3172 President. The Employer's selection is subject to the negotiated grievance procedure, EEO procedure, etc.
6. When selection would create/aggravate a documented hardship for the employee, the parties (Employer and Union) may mutually agree to bypass the selection procedure.
[Emphasis in original.]
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 2 directly interferes with management's rights to assign employees under section 7106(a)(2)(A) and to determine the personnel by which agency operations shall be conducted under section 7106(a)(2)(B) of the Statute. According to the Agency, in American Federation of Government Employees, AFL-CIO, Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA 265 (1990), the Authority found that proposals that have the effect of forcing an agency to reassign employees to certain positions, regardless of organizational or mission requirements, directly interfere with management's right to assign employees and are outside the duty to bargain.
The Agency also contends that the right to assign employees includes the right to determine the qualifications and skills needed to perform the work of each job and to determine which employees meet the necessary job requirements. In this regard, the Agency claims that it is not sufficient that management is able to set the qualifications for the Disability Unit. Rather, the Agency argues that it must be able to determine the qualifications needed to perform other duties outside the Disability Unit and to assign employees to those positions. The Agency explains that a volunteer for the Disability Unit may be the only employee with the qualifications to perform duties outside the Disability Unit and, consequently, that the proposal would preclude the Agency from assigning that volunteer to duties outside the Disability Unit.
With respect to the right to determine the personnel by which its operations will be conducted, the Agency claims that the legislative history of section 7106(a)(2)(B) suggests that this right is independent of the rights to assign work and assign employees and includes the authority to decide which employees will perform work. The Agency asserts that the right to determine the personnel by which its operations shall be conducted would allow a supervisor to decide "which of a group of employees assigned to a particular position is to be used to handle work that needs to be done." Statement of Position at 9. The Agency maintains that this right "cannot be fettered by bilateral requirements such as announcing the work to be done, allowing employees to volunteer and selection by seniority." Id. at 9-10. Therefore, the Agency claims that, regardless of employee wishes and the degree to which employees are equally qualified to perform the work in the Disability Unit, supervisors have the right to unilaterally decide which employees will be assigned to that unit and which employees will continue to perform other duties.
Finally, the Agency contends that Proposal 2 does not constitute an appropriate arrangement under section 7016(b)(3) of the Statute.
2. Union
In its petition for review, the Union argued that the proposal contains procedures that are negotiable under Authority precedent. The Union stated that in U.S. Department of Transportation and Federal Aviation Administration and Professional Airways Systems Specialists, MEBA, AFL-CIO, 40 FLRA 690, 713-16 (1991), rev'd and remanded sub nom. Professional Airways Systems Specialists Division, District No. 1-MEBA/NMU v. FLRA, No. 91-1310 (D.C. Cir. June 22, 1992) (mem.; per curiam), decision on remand, 46 FLRA 103 (1992), and National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 44 FLRA 738 (1992), the Authority found negotiable proposals that establish seniority as a criterion for assigning work among qualified employees. The Union also claimed that if the proposal directly interfered with the exercise of management's rights under section 7106(a) of the Statute, the proposal is nonetheless negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
In its response to the Agency's statement of position, the Union reiterates that Proposal 2 is a negotiable procedure in that it permits the Agency to determine who is qualified to perform work both inside and outside the Disability Unit, to determine where work will be performed, and to determine when to use the "seniority-volunteers system . . . ." Response at 10. In addition, the Union argues that the proposal does not interfere with the Agency's right to assign work because the fifth sentence of the proposal "affords the employer the ability to depart, for any valid business reason it chooses, from [the seniority-volunteer] system as long as the employer provides the [Union] with a statement of the reason(s) for that departure." Id. at 9-10. Additionally, the Union states that "sentence 5 preserves the right of the Agency to assign work to individuals by Agency determinations which supersede sentences 2-4." Id. at 9.
The Union further argues that Proposal 2 is within the duty to bargain because it does not directly interfere with a management right. The Union also maintains that to the extent the proposal involves a matter encompassed within section 7106(b)(1) of the Statute, the proposal is within the duty to bargain under Executive Order 12871.(4) In this connection, the Union asserts that the decision as to which employees will be assigned to the Disability Unit involves the "'types' of employees assigned to a work program." Id. at 11. In the Union's view, the Agency's claim that employees who may volunteer for the Disability Unit possess qualifications that are better suited for non-Disability Unit work suggests that there are different types of employees who are distinguishable based on their qualifications.
Finally, assuming that Proposal 2 directly interferes with the exercise of management's rights, the Union reiterates its view that the proposal is negotiable under section 7106(b)(3) of the Statute. In this connection, the Union makes the same arguments with respect to Proposal 2 as it made with respect to Proposal 1.
B. Analysis and Conclusions
In 48 FLRA 489, we addressed the proposal in its entirety and concluded that it directly interfered with the exercise of management's right to assign employees under section 7106(a)(2)(A) of the Statute. In so finding, we noted the Agency's objection that the prescribed use of volunteers for the Disability Unit would prevent the Agency from assigning those employees to other duties where their qualifications are more in need. We stated that section 7106(a)(2)(A) of the Statute gives management the right to determine which employees will be assigned to a particular position and that the proposal impermissibly required the Agency to assign employees to the Disability Unit based on their volunteer status. Therefore, we rejected the Union's argument that the use of seniority for selection among equally qualified volunteers for the Disability Unit is a negotiable procedure in the circumstances of this case where the Agency contended, and the Union did not dispute, that the proposal deprived the Agency of the right to determine the qualifications of employees for assignment outside the Disability Unit.
We also found that there was insufficient information on which to determine whether the proposal constituted an appropriate arrangement under section 7106(b)(3) of the Statute. Consequently, we concluded that the proposal was outside the duty to bargain under section 7106(a)(2)(A) of the Statute. In light of this result, we found it unnecessary to address the Agency's contention that the proposal also directly interfered with section 7106(a)(2)(B) of the Statute.
In addressing the proposal in its entirety, we noted that neither of the parties had made specific arguments with respect to any sections of the proposal, other than section 4, and that the Union had not requested the Authority to sever and separately consider the sections of the proposal. In its response to the Agency's statement of position, the Union requests that the Authority sever the negotiable portions of the proposal. The Union also specifically addresses various sections of the proposal, including the manner in which the proposal is intended to operate. Based on the arguments submitted by the parties, we now find that the proposal is negotiable. Therefore, we reverse that portion of the decision in 48 FLRA 489 in which we found that Proposal 2 was nonnegotiable.
As noted, the Agency's objection to the proposal was based in large part on its view that the proposal would prevent the Agency from assigning employees to non-Disability Unit positions where there may be a greater need for the qualifications of certain employees. The Union now explains that, under section 5 of the proposal, the Agency would be able to reject a volunteer and essentially retain that employee in a non-Disability Unit position. According to the Union, if the Agency has a "valid business reason" it can decide not to assign a volunteer to the Disability Unit. Response at 9-10. Insofar as the Union's explanation is consistent with the proposal, we adopt it for purposes of our decision.
Although the term "valid business reason" is not defined, the Union states that the Agency has the sole authority to determine what matters constitute valid business reasons. As we understand the Union's use of the phrase "sole authority," the proposal would allow the Agency for any reason to refuse to assign a volunteer to the Disability Unit. Thus, the Agency could decide, for example, that that term encompasses adherence to laws, rules, and regulations, as well as non-work or work-related considerations, such as employee qualifications. See American Federation of Government Employees, Department of Education Council of AFGE Locals and Department of Education, 35 FLRA 56, 62-63 (1990) (Department of Education) (proposal that required training assignments to be made in a "fair and impartial manner" held not to interfere with management's rights to direct employees and assign work because the union explained that the proposal was intended only to require the agency to rely on merit factors required by applicable law, rule, or regulation in making training assignments).
In our view, and as explained by the Union, the proposal is similar, in effect, to proposals that require management "to consider" certain actions when exercising management rights under the Statute and which were held not to impose substantive limitations on those rights. For example, in National Association of Government Employees, Local R12-29 and U.S. Department of the Navy, Naval Facilities Contracts Training Center, Construction Battalion Center, Port Hueneme, California, 43 FLRA 810, 816-18 (1991), we found that a proposal that required the agency to make every effort to limit the number of objectives in a workplan but explicitly reserved management's right to exceed the number constituted a negotiable procedure. We stated that "proposals requiring management to consider a particular matter 'preserve management's discretion to decide how to act because they permit management to weigh and assess factors and make a decision based on management's determination of the significance of the factors.'" Id. at 818, quoting Fort Sheridan, 34 FLRA at 720. In this case, Proposal 2 permits the Agency to weigh and assess all the factors it deems appropriate in retaining employees in non-Disability Unit positions. As explained by the Union, the proposal does not limit the range of factors management can take into account in deciding to reject an applicant for the Disability Unit because management has the sole discretion to determine what those factors are and how much significance to accord to any of the factors.
For the same reasons, we find that the proposal is distinguishable from proposals that have been found to directly interfere with the exercise of management's rights because they impose substantive limitations on the exercise of those rights. See for example, American Federation of Government Employees, AFL-CIO, Local 53 and U.S. Department of the Navy, Navy Material Transportation Office, Norfolk, Virginia, 42 FLRA 938, 945 (1991) (provision that required agency to make "every effort" to provide work for employees who had no annual leave during periods of shutdown or reduced operations found to directly interfere with management's right to assign employees because it would have required management to assign work when there was work available to be performed). As we stated above, the proposal does not limit the Agency's ability to retain employees in non-Disability Unit positions because the Agency has the right to determine the circumstances under which it will reject an applicant for a Disability Unit position.
Accordingly, we find that Proposal 2 does not impose a substantive limitation on the exercise of management's right to assign employees under section 7106(a)(2)(A) of the Statute so as to directly interfere with that right.
We also reject the Agency's argument that the proposal directly interferes with the Agency's right to determine the personnel by which its operations will be conducted under section 7106(a)(2)(B) of the Statute. In this regard, the Authority has held that that statutory right includes the discretion to determine the particular employees or personnel to whom work will be assigned. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Pacific Region, 47 FLRA 1038, 1044 (1993); Defense Logistics Agency Council of AFGE Locals, AFL-CIO and Department of Defense, Defense Logistics Agency, 24 FLRA 367, 374-75 (1986). Inasmuch as the proposal permits the Agency to define the circumstances under which management can reject a volunteer for the Disability Unit, the proposal does not interfere with the Agency's ability to determine who will perform work.
We further find that the proposal does not, in any other manner, interfere with the exercise of management's rights. Noting particularly the absence of Agency arguments with respect to specific sections of the proposal, we find that they are procedural in nature and, therefore, are negotiable under section 7106(b)(2) of the Statute.
More specifically, section 1 states that the Agency will issue and distribute to all qualified employees memoranda relating to selection announcements and provide a copy to the Union as well. Section 2 provides that all qualified employees will be given an opportunity to volunteer for assignment to the Disability Unit. Section 3 mandates that employees shall volunteer in writing. We view these sections as procedures for apprising employees and the Union of opportunities within the Disability Unit and allowing employees to express their interest in being assigned to the Disability Unit. We also find, absent any indication to the contrary in either the proposal or the Union's stated intent, that the proposal would permit the Agency to determine which employees are qualified.
Section 4 establishes the use of seniority in connection with the selection of volunteers for the Disability Unit. The Authority previously has stated that when two or more employees are equally qualified and capable of performing the work involved, the selection of any one of those employees to perform the work is consistent with the exercise of management's rights under section 7106(a) of the Statute. See, for example, American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 41 FLRA 618, 624-25 (1991) (portions of a provision, establishing rotations to non-competitive details by volunteers and based on seniority where necessary, found negotiable as procedure because the system applied only to employees already determined as qualified by the agency). Thus, the procedure by which employees adjudged by management to be equally qualified are selected to perform certain work is negotiable under section 7106(b)(2) of the Statute. Id. To the extent the Agency would determine whether employees are qualified to perform work in the Disability Unit, we find that section 4 is a negotiable procedure.
Section 5 states that if the Agency does not utilize the seniority provisions of section 4 to select an employee, the Agency will provide its reasons, in writing, to the Union. The section further states that the Agency's selection is subject to challenge through, for example, the negotiated grievance procedure or EEO procedures. In our view, both provisions of section 5 are negotiable procedures. The requirement to notify the Union is simply informational and does not require the Agency to act in any manner that is inconsistent with the exercise of a management right. The portion of the section allowing challenges to management's selection is consistent with the definition of grievance contained in section 7103(a)(9) of the Statute, permitting employees to challenge any claimed violation of law, rule, and regulation, and with section 7121(d), which permits an aggrieved party to utilize the services of the Equal Employment Opportunity Commission, under various circumstances. See also Department of Education, 35 FLRA at 62-63 ("arbitral review of the exercise of a management right to determine whether the exercise complied with law or regulation is consistent with congressional intent concerning the functions which arbitrators perform under the Statute.").
Finally, section 6 permits the parties to mutually agree to bypass the selection procedure when an employee's selection would create or exacerbate a hardship. In our view, this section does nothing more than provide a mechanism whereby the parties can agree to circumvent the use of seniority for assignment to the Disability Unit under prescribed conditions. The section does not interfere with the Agency's ability to reject a volunteer, under other circumstances, as we found above. As such, this section is also procedural in nature.
Having found that Proposal 2 constitutes a negotiable procedure, we need not address the Union's additional arguments that the proposal is negotiable under either section 7106(b)(1) or section 7106(b)(3) of the Statute.
V. Order
The Agency shall upon request, or as otherwise agreed to by the parties, bargain over Proposal 2.(5) The petition for review is dismissed as to Proposal 1.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. A statement of service attached to the Agency's statement of position indicated that the latter had been served on the Union by certified mail. As a result, the Authority presumed that the statement of position had been served on the Union. Thus, there was no need to question the Agency's service until the Union apprised the Authority that it had not received the statement of position.
2. In 48 FLRA 489, we found that the Agency did not address Proposal 3 in its statement of position. Therefore, we did not consider that proposal in our decision.
3. In our decision in 48 FLRA 489, we found that there was an insufficient record on which to determine whether the proposal constituted an arrangement.
4. On October 1, 1993, the President issued Executive Order 12871, "Labor-Management Partnerships" (58 Fed. Reg. 52201-52203, Oct. 6, 1993). Section 2(d) of the Order provides that the head of each agency shall "negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same[.]"
5. In finding Proposal 2 negotiable, we make no judgment as to its merits.