22:0539(57)NG - NFFE and Haskell Indian Junior College, Bureau of Indian Affairs, DOI, Lawrence, KS -- 1986 FLRAdec NG
[ v22 p539 ]
The decision of the Authority follows:
22 FLRA No. 57 FEDERAL FEDERATION OF FEDERAL EMPLOYEES Union and HASKELL INDIAN JUNIOR COLLEGE, BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, LAWRENCE, KANSAS Agency Case No. 0-NG-1113 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). The appeal concerns the negotiability of eleven Union proposals. /1/ The proposals cover the impact of the Agency's institution of a pre-college program, assignment of work space, introduction of Indian-related materials into class instruction, and changing of work schedules. II. Union Proposal 1 ACT scores as well as placement tests shall be used to initially place students in the pre-college program. A. Position of the Parties The Agency contends the Union Proposal 1 would require it to negotiate concerning the educational policy of Haskell Indian Junior College in violation of its right under section 7106(b)(1) of the Statute to determine the means and manner by which its mission will be carried out. The Agency also contends that the proposal exceeds the scope of its obligation to negotiate over the impact and implementation of a change in conditions of employment and does not concern a condition of employment of unit employees. The Union states that the intent of the proposal is to more accurately place students in the appropriate level of course work. Since, according to the Union, the improper placement of students increases an instructor's workload, the Union contends that the Agency's placement policy has an adverse impact on bargaining unit employees and that the Agency is therefore required to negotiate concerning the impact of its policy. B. Analysis and Conclusions Section 7106(b)(1) of the Statute provides that, unless the agency elects to do so, an agency's duty to bargain with a labor organization over conditions of employment does not extend to those matters which involve the technology, methods, and means of performing work. National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 254, 258-59 (1979). The Authority has consistently held that those matters which directly and integrally relate to the accomplishment of the mission of the agency fall within the meaning of performing work under section 7106(b)(1). Panama Canal Federation of Teachers, Local 29 and Department of Defense Dependents Schools, Panama Region, 19 FLRA No. 99, slip op. at 2-3 (1985); American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603 (1980) (Union Proposals VIII and IX), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). The Union's proposal would require the Agency to use ACT scores in addition to the current method of using placement tests to place students in the pre-college program. The record in this case indicates that the mission of Haskell Indian Junior College is the education of its students. This mission necessarily requires the Agency to determine the appropriate level of course work in which to place students in order to best educate them. The Agency has determined that the establishment of a pre-college program to address the deficiencies of developmental students would help it to better accomplish its mission. Agency's Statement of Position at 1-5. The criteria used to place students in the pre-college program thus directly and integrally relate to the accomplishment of the Agency's mission, and, therefore, constitute methods and means of performing the Agency's work under sections 7106(b)(1). Since the Union's proposal would require the Agency to negotiate concerning its placement policy, the Authority concludes the Union Proposal 1 is contrary to the Agency's right under Section 7106(b)(1) to determine the methods and means of performing work. The Union contends that the proposal is intended to place students more accurately. The Union has not presented any evidence that the Agency's current placement policy results in students being improperly placed; therefore, it has not demonstrated that the policy adversely impacts upon bargaining unit employees. Accordingly, the Authority concludes that Union Proposal 1 is outside the duty to bargain. In view of our decision that the proposal violates management's right, it is unnecessary to determine whether the proposal is also outside the duty to bargain because it does not concern a condition of employment. III. Union Proposals 2 and 3 Proposal 2 Enrollment statistics should not be used to evaluate instructional positions. Proposal 3 Enrollment statistics should not be used negatively against employees in the performance appraisal process. A. Positions of the Parties The Agency treats these proposals separately. It argues that Proposal 2 addresses the assignment of instructors to courses and design of curriculum. It maintains that such a proposal preempts its right to determine that means and methods by which the mission will be accomplished. The Agency also states that the proposal would affect the number of employees assigned to a shift or tour of duty or a project. The Agency contends that Proposal 3 requires negotiation over performance elements and standards in violation of management's right. The Union's contentions on both proposals concentrate on the use of statistics in the performance context. The Union maintains that course enrollment tends to be a matter beyond an instructor's control. It states declines in enrollment should not be used against employees in the appraisal process. It argues that the proposals do not violate management's rights. B. Analysis and Conclusions The Authority had held that proposals which would have prohibited an agency from considering backlogs as a factor in rating and evaluating employee performance were outside the duty to bargain since they would eliminate a specific element from the performance appraisal process in violation of management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. American Federation of Government Employees, National Council of Social Security Payment Center Locals and Social Security Administration, Office of Program Service Centers, Baltimore, Maryland, 7 FLRA 818, 820-21 (1982) (Union Proposals 6 and 7), citing the reasoning set forth in National Treasury Employees Union and Department of the Treasury, Breau of the Public Dept, 3 FLRA 768 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). Proposals 2 and 3 would effectively prohibit the Agency from considering enrollment statistics as a factor in evaluating an instructor's performance. The Union contends that the proposal can be distinquished from the proposals in SSA, Office of the Program Service Centers because the word "should" in the present proposals vests the Agency with discretion on whether and how the provisions should be applied. However, the proposals would still violate management's rights under section 7106(a)(2)(A) and (B) to identify cretical elements and establish performance standards by imposing a substantive limitation of the Agency's exercise of those rights. In American Federation of Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank Board, New York District Office, 13 FLRA 446, 450-52 (1983), the Authority rejected the union's contention that the phrase "to the extent practicable" removes the substantive limitation that the proposal would have placed on agency's right to identify critical elements. Similarly, the Authority rejected a union contention that the phrase "to the maximum extent possible" leaves the agency with discretion to exercise its right to assign work "without inhibition." American Federation of Government Employees, AFL-CIO, National Border Patrol Council and Department of Justice, Immigration and Naturalization Service, 16 FLRA 251, 252 (1984). The Union also contends that the duty to bargain extends to the proposals because course enrollment tends to be a matter beyond the control of the individual instructor and should, therefore, not be used to evaluate performance. The Authority has held in American Federation of Government Employees, AFL-CIO, Local 2849 and Office of Personnel Management, New York Regional Office, 7 FLRA 571, 575-76 (1982) (Union Proposal 3) and American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217, 223-25 (1981) (Union Proposal 2) that proposals requiring performance standards to make allowances for factors beyond the control of employees are within the duty to bargain. However, the Authority also found that the language of the proposals in those cases would have provided a general, nonquantitative standard by which the application of performance standards established by management could be evaluated in a subsequent grievance. OPM, New York Regional Office, 7 FLRA at 576; FDIC, Chicago Region, 7 FLRA at 224. In terms of this case, rather than establishing such a "general nonquantitative standard," Union Proposals 2 and 3 would require the Agency to negotiate concerning a specific element of its performance standards -- whether enrollment statistics should be a factor. Since the proposal would prohibit the Agency from considering course enrollment statistics in appraising an instructor's performance whether or not enrollment in a relevant factor, the Union's proposals are materially different from the proposals found negotiable in OPM, New York Regional Office and FDIC, Chicago Region. Union Proposals 2 and 3 are outside the duty to bargain in that they would require the Agency to negotiate concerning the identification or critical elements and content of performance standards in violation of management's rights to assign work and direct employees under section 7106(a)(2)(A) and (B) of the Statute. Again, because of our findings, it is unnecessary to address the Agency's remaining arguments. IV. Union Proposals 4 and 5 Proposal 4 If a case has five students or less in enrollment, then the instructor shall have the option of closing that section of the course with the approval of their supervisor. Proposal 5 If instructors end up with lower than their normal teaching assignment due to low enrollment, then any assignment or additional duties shall be related to their position and shall be made as fairly as possible. A. Position of the Parties The Agency contends that proposals 4 and 5 interfere with management's right to assign work and determine the means and methods by which its mission will be carried out. The Union maintains that the proposals assure equitable assignments. It also states that the "fairly as possible" language mirrors language in the furlough section of the Master Agreement. B. Analysis and Conclusions In National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 768, 775 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982), the Authority stated that management's right under section 7106(a) of the Statute to assign work encompasses duties and work to be assigned as well as the particular employees to whom or positions to which the work will be assigned. Union Proposal 4 would delegate to the instructor the discretion otherwise vested in the Agency to initiate the process of deciding whether a particular class should be offered and, consequently, what duties and work will be assigned to that employee. The Authority has held that proposals which would involve an exclusive representative in the deliberative process by which management makes decisions on matters within the discretion of the agency themselves violates management's rights. A proposal involving the exclusive representative in the deliberative process on contracting out determinations was rejected in National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574, 579-80 (1981), aff'd sub nom. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). In National Association of Government Employees, Local R14-89 and Department of the Army, Headquarters, U.S. Army Defense Center and Fort Bliss, Texas, 15 FLRA 14, 15 (1984), the Authority rejected a proposal permitting union participation in the process of determining when additional work will be assigned as a violation of the agency's rights to direct employees and assign work. Proposal 4 would delegate to employees the decisions otherwise reserved to management on whether a class section would be offered. This violates the Agency's right under section 7106(a) to determine the particular duties and work to be assigned and is outside the duty to bargain. Union Proposal 5 would require the Agency to ensure that duties beyond an instructor's normal teaching assignment be related to the instructor's position. In National Federation of Federal Employees, Local 1622 and Department of the Army, Headquarters, Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA 578, 580-81 (1984), the Authority held that a proposal which would have prevented the agency from assigning "additional or incidental duties to employees which are inappropriate to their positions or qualifications" violated management's right to assign work in that the agency would be prohibited from requiring employees to perform certain duties. The addition of the "as fairly as possible" language to Proposal 5 does not alter the conclusion that the Proposal is outside the duty to bargain. A proposal requiring that the assignment of additional duties be made "fairly" would include a general, nonquantitative standard by which an agency's exercise of its reserved authority to assign work could be evaluated in a subsequent grievance. See National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration 6 FLRA 588, 597-99 (1981) (Union Proposal VII). Union Proposal 5, however, is not limited to such a "general nonquantitative standard," but would also expressly prohibit the Agency from assigning duties to an instructor which are not related to the instructor's position in violation of the Agency's right under section 7106(a) of the Statute to assign work. V. Union Proposal 6 The addition of staff in the Skills Center has resulted in a lack of adequate working space for those employees involved. These Skills Center employees should be involved in discussions regarding options on how to alleviate their problems. A. Positions of the Parties The Agency asserts it has no obligation to negotiate over this matter because it does not agree that space is inadequate. Even so, the Agency maintains the issue is moot since ongoing discussions have taken place with the union and employees. The Union argues that the addition of staff has resulted in a change in a condition of employment which is negotiable. B. Analysis and Conclusion Union Proposal 6 neither obligates the Agency to agree that a workspace problem exists nor requires it to remedy any problem should there be one. Instead, the Union's proposal merely requires the Agency to provide a forum for discussing with employees the effect of the hiring of additional workers. See, e.g., American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 17 FLRA 674, 676-77 (1985) (Union Proposal 3), petition for review filed sub nom. Local 12, American Federation of Government Employees v. FLRA, No. 85-1371 (D.C. Cir. June 19, 1985). In an analogous situation, the Authority held that a union proposal to establish a joint labor-management committee to develop the agency's training program was a negotiable procedure under section 7106(b)(2) of the Statute. American Federation of Government Employees, AFL-CIO, Local 2761 and U.S. Department of the Army, U.S. Army Adjutant General, Publication Center, St Louis, Missouri, 14 FLRA 438 (1984). The Authority found that the committee would serve as a forum through which the union could express its views regarding the agency's training programs but would not require the agency to negotiate concerning the content of those programs. The discussions which have already taken place with respect to conditions at the Skills Center do not render the proposal moot. The Union contends and the Agency does not dispute that the parties have not reached agreement with respect to continuing discussions concerning the Skills Center. Thus, the Authority concludes that Union Proposal 6 constitutes a negotiable procedure under section 7106(b)(2) of the Statute and falls within the Agency's duty to bargain. VI. Union Proposal 7 If physical moves are necessary with regard to the Skills Center as determined by management, then management will provide the necessary manpower to assist in moving heaver items. A. Position of the Parties The Agency contends that Union Proposal 7 would prohibit the Agency from assigning employees at the Skills Center to any duties in connection with potential moves in violation of management's right under section 7106(a)(2)(B) of the Statute to assign employees and assign work. It also contends that the proposal is moot since the Agency is committed to helping affected employees. The Union states that the proposal would secure assistance for employees on moving bulky items. B. Analysis and Conclusions The language of the proposal as well as the Union's statement of intent with regard to Union Proposal 7 /2/ indicate that the proposal does not preclude management from assigning move-related duties to Skills Center employees, but merely would require that the Agency provide any necessary assistance in the event of such a move. Therefore, the proposal does not interfere with the Agency's exercise of its discretion with respect to its rights under section 7106 of the Statute. Rather, the Agency has the discretion to determine whether to move and, if so, what assistance, if any, is "necessary." Union Proposal 7 constitutes a procedure to be observed by Agency officials in exercising the aforementioned rights, and is, therefore, negotiable under section 7106(b)(2) of the Statute. See American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 152, 154 (1979), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). The Agency's contention that the proposal has been statisfied and is, therefore, moot, is not substantiated by the record. There is no evidence of agreement between the parties on the proposal or of assistance having been rendered in any moves which may have taken place. VII. Union Proposal 8 If management determines that the Skills Center or other areas of campus are to remain open for extended periods of time, then management should take necessary steps to provide for protection of employees and for property located within these areas. A. Position of the Parties The Agency asserts that the proposal concerns internal security practices which are the sole concern of the Agency under section 7106(a)(1) of the Statute. The Union maintains that better steps would be developed to avoid loss of Government property and employee belongings although management would retain the final decision on what the steps would be. B. Analysis and Conclusion In American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 14 FLRA 6, 8-9 (1984) (Union Proposal 2), enforced sub nom. FLRA v. Office of Personnel Management, 778 F.2d 844 (D.C. Cir. 1985), the Authority held that a proposal which would require management to provide "adequate security to all employees" was not inconsistent with management's right under section 7106(a)(1) of the Statute to determine the internal security practices of the agency. In that case, the Authority found that the proposal concerned the health and safety of its employees rather than the internal security of the agency. Additionally, the Authority found that, even if the proposal in Office of Personnel Management did concern "internal security," the proposal would vest discretion in the agency to determine what level of security was "adequate" and, therefore, still would not be inconsistent with the agency's right to determine its internal security practices. Similarly, Union Proposal 8 would require the Agency to take "necessary" steps to protect employees and property within the prescribed areas. Like the proposal in Office of Personnel Management, the Union's proposal leaves to the Agency's sole discretion decisions as to what level of security satisfies the contractual standard "necessary." Consequently, the Authority finds that Union Proposal 8 does not violate the Agency's right under section 7106(a)(1) of the Statute to determine its internal security practices and is within the duty to bargain. VIII. Union Proposals 9 and 10 Proposal 9 Any addition of Indian materials into class instruction in position descriptions should be made on an individual basis, recognizing that such emphasis may be more appropriate in some areas than in others. Proposal 10 Any use of the addition of Indian materials in position descriptions in the performance appraisal process shall be in accordance with the Master Labor-Management Agreement. A. Positions of the Parties The Agency contends that these proposals interfere with the educational policy of the college. It also asserts that the proposals exceed the scope of bargaining. Finally, it states that the Master Agreement prohibits negotiations at the local level on position descriptions. The Union argues that these proposals will draw attention to the performance appraisal process. Also, it suggests that the degree of incorporation of Indian-related materials should be determined on a case-by-case basis. B. Analysis and Conclusions The clear language of the proposals considered together with the submissions of the parties demonstrates that the Union's proposals constitute an attempt to negotiage concerning the substance of the Agency's decision to require the use of Indian-related Materials in its courses. /3/ The determination of what duties and responsibilities are assigned to a particular position falls within management's right to assign work under section 7106(a) of the Statute. See National Treasury Employees Union and Department of the Treasury, Bureau of the Public debt, above, 3 FLRA at 775. Whether and to what extent Indian-related materials should be incorporated into the subject matter of each course and, consequently, into the corresponding position description constitutes the assignment of particular duties and responsibilities over which the Agency has discretion. To the extent that the Union's proposals deal with the content of position descriptions, the Authority has consistently held that a position description does not constitute an assignment of duties but merely reflects the duties which have been assigned to a position or an employee. However, a position description must also accurately reflect the duties and responsibilities assigned to the position. See, e.g., National Federation of Federal Employees, Local 1497 and Department of the Air Force, Lowry Air Force Base, Colorado, 9 FLRA 151, 152 (1982) (Union Proposal 1) and cases cited therein. Since Union Proposals 9 and 10 would effectively require the Agency to negotiate concerning the assignment of duties in violation of management's right under section 7106(a) of the Statute to assign work, the Union's proposals are outside the duty to bargain. IX. Union Proposal 11 Any changes in the tours of duties of unit employees shall be made through the use of volunteers. If there are not enough volunteers to fill the needed changes, then assignment shall be made based on reverse seniority with temporaries being assigned before permanent furloughs. A. Position of the Parties The Agency maintains that this proposal would interfere with its rights under section 7106(a)(2)(B) to assign work and to determine the numbers, types, and grades of employees assigned to a tour of duty. The Agency asserts that the proposal effects the utilization of dormitory counselors. The Union maintains the Article 26 of the Master Agreement renders these matters negotiable: Section 1 hours. The basic workweek shall consist of forty (40) hours spread over five consecutive eight (8) hour days. The workweek will be the period for which an employee is paid a straight-time pay rate. Management recognizes the right of the Local to impact bargain changes in the hours of work, shifts, or tours of duty. The Union cities National Treasury Employees Union v. Department of Treasury, Internal Revenue Service, 6 FLRA 508 (1981) to support its point. B.