23:0230(30)NG - AFGE Local 3186 and HHS, Office of SS Field Operations, Philadelphia Region -- 1986 FLRAdec NG



[ v23 p230 ]
23:0230(30)NG
The decision of the Authority follows:


 23 FLRA No. 30
 
 American Federation OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3186
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES
 OFFICE OF SOCIAL SECURITY FIELD
 OPERATIONS, PHILADELPHIA REGION
 Agency
 
                                            Case No. 0-NG-969
 
                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 petition concerns
 the negotiability of three proposals submitted in response to the
 Agency's implementation of a reduction-in-force action involving the
 separation from employment of temporary employees and a new policy
 whereby it restricted permanent, part-time employees to work within
 their established tours of duty.
 
                           II.  Union Proposal 1
 
          Permanent part-time employees who are restricted to a tour of
       duty of less than forty hours per week will be assigned to a
       reduced workload.
 
                       A.  Positions of the Parties
 
    The Agency contends that because this proposal would require
 management to assign a reduced workload to positions in the bargaining
 unit, it directly interferes with management's right, under section
 7106(a)(2)(B) of the Statute, to assign work.  The Agency also contends
 that the proposal interferes with management's right, under section
 7106(b)(1) of the Statute, to establish a new shift or tour of duty.
 
    The Union argues that, under applicable Authority precedent, this
 proposal is within the duty to bargain because it contains general
 non-quantitative language which provides, at most, a procedure or an
 arrangement by which a management right is exercised.
 
                               B.  Analysis
 
    This proposal was submitted in response to management's new policy of
 restricting part-time employees from working beyond their part-time
 tours of duty.  Prior to management's decision, part-time employees
 could work up to 40 hours per week.  As a result of the change, these
 employees are now precluded from working up to 40 hours per week.
 
    The Union's explanation that the intent of the proposal is merely for
 management to give "consideration" to the reduction of full-time
 workload assignments is contrary to the explicit language of the
 proposal.  That is, the proposal is not limited to considering the
 reduction of work assignments, but instead would mandate that management
 reduce work assignments in circumstances where employees work less than
 full-time hours.
 
    The Agency has provided no support for its claim that this proposal
 interferes with its right to establish tours of duty under section
 7106(b)(1).  Thus, such contention cannot be sustained.  However, this
 proposal is to the same effect as Proposal V found nonnegotiable in
 National Treasury Employees Union and Department of the Treasury,
 Internal Revenue Service, 6 FLRA 508 (1981).  Proposal V in that case
 required the agency to refrain from assigning cases to employees "when
 the caseload is unmanageable." The Authority reasoned that the proposal
 imposed a precondition on the assignment of cases to employees and under
 some circumstances, and irrespective of the agency's immediate needs,
 prevented the agency from making case assignments.  Thus, the Authority
 concluded the proposal was inconsistent with management's right to
 assign work under section 7106(a)(2)(B) of the Statute.  Based on the
 reasons expressed in Internal Revenue Service this proposal, which
 precludes management from making work assignments in circumstances where
 employees work less than full-time, is also inconsistent with
 management's right to assign work under section 7106(a)(2)(B).  See also
 National Federation of Federal Employees, Local 1622 and U.S.
 Commissary, Fort Meade, Maryland, 16 FLRA 998 (1984) (Provision 1).
 Since this proposal would directly interfere with management's right to
 assign work it does not constitute a negotiable procedure within the
 meaning of section 7106(b)(2) of the Statute.  See American Federation
 of Government Employees, AFL-CIO and Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced sub
 nom. Department of Defense v. Federal Labor Relations Authority, 659
 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S.
 945 (1982).
 
    We turn now to the question of whether this proposal constitutes an
 appropriate arrangement within the meaning of section 7106(b)(3) of the
 Statute and apply the tests set out in National Association of
 Government Employees, Local R14-87 and Kansas Army National Guard, 21
 FLRA No. 4 (1986).  Here, the Union has not identified any adverse
 effect which would result solely from the assignment of work to the
 employees in question.  That is, there is no indication that these
 employees are expected to perform the assigned work in a manner that is
 inconsistent with their being restricted to working less than 40 hours
 per week.  But, even assuming that the proposal was intended to
 ameliorate an adverse effect perceived by the assignment of a full
 workload to permanent part-time employees who are now restricted to
 working only the hours of their established part-time tour of duty, the
 proposed amelioration would expressly preclude the Agency from assigning
 a certain amount of work at all in these circumstances.  Such a proposed
 amelioration, which totally abrogates the exercise of a management
 right, would excessively interfere with management's right to assign
 work and therefore does not constitute an appropriate arrangement within
 the meaning of section 7106(b)(3).  See American Federation of
 Government Employees, Local 2782 v. Federal Labor Relations Authority,
 702 F.2d 1183, 1188 (D.C. Cir. 1983), reversing and remanding American
 Federation of Government Employees, AFL-CIO, Local 2782 and Department
 of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA 91 (1981).
 
                              C.  Conclusion
 
    This proposal violates management's right, under section
 7106(a)(2)(B), to assign work and does not constitute a negotiable
 procedure under section 7106(b)(2) or an appropriate arrangement under
 section 7106(b)(3) of the Statute.
 
                          III.  Union Proposal 2
 
          Temporary employees will be recalled based on their length of
       service with the Social Security Administration.
 
                       A.  Positions of the Parties
 
    The Agency contends that because the proposal requires management to
 recall separated employees based on seniority, it interferes with
 management's discretion to hire under section 7106(a)(2)(A) of the
 Statute and to make selections for appointment under section
 7106(a)(2)(C) of the Statute.  The Agency further contends that because
 the proposal requires management to rehire employees without taking into
 account their actions while not employed, it interferes with
 Government-wide regulations concerning "suitability" set out at 5 CFR
 Sections 731.201 and 731.202.
 
    The Union contends that the proposal is within the duty to bargain
 because it is a procedure or an arrangement by which a management right
 is exercised.
 
                               B.  Analysis
 
    This proposal applies to temporary employees who were terminated
 without personal fault.  According to the Union it would require that
 these former employees "will be rehired when allocations become
 available based on their length of service with the Agency." The Union
 also indicates that management would be able to determine the continued
 suitability for employment of employees rehired according to this
 proposal.  Consequently, contrary to the Agency's claim, this proposal
 does not violate 5 CFR 731.202.  However, there is nothing in the record
 to indicate that once allocations became available management could
 elect to not recall temporary employees and utilize such allocations for
 permanent positions instead or to elect to accomplish its work without
 any increase in staff, permanent or temporary.  Thus, this proposal is
 distinguishable from the proposal found to be an appropriate arrangement
 within the meaning of section 7106(b)(3) of the Statute in National
 Association of Government Employees, Local R14-87 and Department of the
 Army, Kansas Army National Guard, Topeka, Kansas, 21 FLRA No. 48 (1986).
  The proposal in the Topeka case required management to return employees
 to their former positions at their former duty stations only if and when
 such positions were vacant and only then if the agency decided to fill
 them.  No question was raised in that case as to whether the employees
 possessed the qualifications for the vacant positions since the
 employees in question were merely returning to positions they would
 still occupy but for their reassignment as a result of a RIF.  Further,
 the proposal specifically preserved the agency's right to elect to fill
 or not fill vacant positions.  Unlike the proposal in the Topeka case
 this proposal would absolutely eliminate the Agency's discretion
 concerning the filling of positions.  Thus, this proposal directly
 interferes with the Agency's rights to hire and select and as a result,
 it does not constitute a negotiable procedure within the meaning of
 section 7106(b)(2) of the Statute.  See American Federation of
 Government Employees, AFL-CIO and Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced sub
 nom. Department of Defense v. Federal Labor Relations Authority, 659
 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S.
 945 (1982).  In addition, by mandating the recall of temporary employees
 this proposal would constitute an excessive interference with
 management's right to hire and assign employees under section
 7106(a)(2)(A) of the Statute and with management's right, under section
 7106(a)(2)(C), to make selections in filling positions.  It is not,
 therefore, an appropriate arrangement under section 7106(b)(3) of the
 Statute.  See also National Association of Government Employees, Local
 R14-87 and Department of the Army, Kansas Army National Guard, 21 FLRA
 No. 105 (1986) (Proposal 2).
 
    Even assuming that this proposal does not constitute an excessive
 interference with management's rights, it is outside the duty to bargain
 under section 7117(a)(1) of the Statute because it is inconsistent with
 a Government-wide regulation, that is, requirement 4 of subchapter 1-4,
 chapter 335 of the Federal Personnel Manual (FPM), which permits
 agencies to fill positions by making selections from any appropriate
 source.  This proposal would require the Agency to select for vacancies
 only temporary employees who have been separated from employment.  By so
 doing, it would prevent the Agency from making selections from any
 appropriate source.  Thus, this proposal violates Requirement 4 of
 subchapter 1-4, Chapter 335 of the FPM, a Government-wide regulation,
 and on that basis is outside the duty to bargain.  See American
 Federation of Government Employees, AFL-CIO, Local 2677 and Department
 of Health and Human Services, Office of Community Services, 21 FLRA No.
 22 (1986), petition for review filed sub nom. American Federation of
 Government Employees, AFL-CIO, Local 2677 v. FLRA, No. 86-1287 (D.C.
 Cir. May 19, 1986);  American Federation of State, County and Municipal
 Employees, Local 2830, AFL-CIO and Department of Justice, 21 FLRA No.
 121 (1986) (First disputed sentence).
 
                              C.  Conclusion
 
    Based on the foregoing analysis, this proposal does not constitute
 either a negotiable procedure under section 7106(b)(2) or an appropriate
 arrangement under section 7106(b)(3) of the Statute.  We also hold that
 this proposal conflicts with FPM chapter 335, subchapter 1-4, and,
 therefore, is nonnegotiable under section 7117(a)(1) of the Statute.
 
                          III.  Union Proposal 3
 
          Permanent part-time employees will be converted at the earliest
       opportunity, upon request, to permanent full-time positions.
 
                       A.  Positions of the Parties
 
    The Agency contends that because this proposal requires management to
 convert part-time employees to full-time status upon their request, it
 interferes with management's right to hire under section 7106(a)(2)(A)
 of the Statute.  The Agency further contends that the proposal
 interferes with management's right to determine the number of employees
 of the Agency under section 7106(a)(1).
 
    The Union argues that this proposal is within the duty to bargain
 because it contains general non-quantitative language which provides for
 reasonable application and is, at most, a procedure or arrangement by
 which a management right is exercised.  Furthermore, according to the
 Union the term, "at the earliest opportunity," refers to, "when either a
 full-time position is vacated by another employee or when the employer
 determines that the workload justifies the establishment of a full-time
 position."
 
                               B.  Analysis
 
        1.  Appropriate arrangements within the meaning of section
 
                7106(b)(3) of the Statute
 
    This proposal was intended as an arrangement for part-time employees
 who previously worked a full-time schedule but who because of funding
 problems are now restricted to working only the hours of their part-time
 schedule.  Clearly, such employees are adversely affected by
 management's right to reduce their hours.  In this circumstance, then,
 this proposal mandates that such part-time employees upon their request
 will be converted to, or in other words, selected for, permanent
 full-time positions at the earliest opportunity.  While the term
 "earliest opportunity" is not defined in the proposal, the Union states
 it is intended to mean when "a full-time position is vacated by another
 employee and available or when the employer determines the workload
 justifies the establishment of a full-time position." Thus, in our
 opinion, this proposal would apply only after management determines to
 fill a vacant full-time position.  Interpreted in this manner the
 proposal would not violate management's right to determine the number of
 employees under section 7106(a)(1) of the Statute.  Further, there is
 nothing in the record which indicates that management would be unable to
 determine the qualifications of the part-time employee for the full-time
 position.  In fact, it appears that but for the funding restrictions
 which resulted in part-time employees being limited to working only a
 part-time schedule those part-time employees would have been performing
 the duties of such full-time positions.
 
    The Authority finds that this proposal has the same effect as the
 proposal in the Authority's Decision and Order on Remand in AFGE, Local
 2782 and Bureau of the Census, 14 FLRA 801 (1984), affirmed in the
 Authority's Decision and Order on Motion for Reconsideration (July 11,
 1985), petition for review filed, No. 85-1562 (D.C. Cir. Sept. 6, 1985).
  In that case the Authority reaffirmed its prior decision that a
 proposal requiring the Agency to select available qualified repromotion
 eligible employees when filling vacancies in the bargaining unit
 directly interfered with management's rights under section 7106(a)(2)(C)
 of the Statute.  Thus, the proposal in this case also directly
 interferes with the Agency's rights under section 7106(a)(2)(C) and
 thereby does not constitute a negotiable procedure under section
 7106(b)(2) of the Statute.  See American Federation of Government
 Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air
 Force Base, Ohio, 2 FLRA 604 (1980), enforced sub nom. Department of
 Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir.
 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).  The
 Authority also concluded in the Decision and Order on Remand that the
 proposal constituted a negotiable appropriate arrangement under section
 7106(b)(3) of the Statute notwithstanding its limitation on management's
 discretion to determine the relative qualifications of repromotion
 eligibles.  Accordingly, the Authority finds, for the reasons stated
 more fully in that decision, that the proposal here does not excessively
 interfere with management's rights and, therefore, constitutes a
 negotiable appropriate arrangement under section 7106(b)(3) of the
 Statute.
 
         2.  Inconsistent with Government-wide Rule or Regulation
 
    The Authority also concluded in its Decision and Order on Remand in
 AFGE, Local 2782 and Bureau of the Census that while the proposal
 constituted an appropriate arrangement under section 7106(b)(3), it
 nevertheless was outside the duty to bargain under section 7117(a)(1) of
 the Statute because it was inconsistent with a Government-wide
 regulation, that is, Requirement 4 of subchapter 1-4, chapter 335 of the
 FPM, which would permit agencies to fill positions by making selections
 from any appropriate source.  The proposal would require the Agency to
 select only permanent part-time employees for permanent full-time
 vacancies which it has decided to fill.  It would, therefore, have the
 same effect as the proposal in AFGE, Local 2782 and Bureau of the
 Census, that is, it would prevent the Agency from making selections from
 any appropriate source.  Thus, for the reasons stated more fully in our
 Decision and Order on Remand in AFGE, Local 2782 and Bureau of the
 Census, this proposal violates Requirement 4 of subchapter 1-4, chapter
 335 of the FPM, a Government-wide regulation, and is outside the duty to
 bargain.  See also Department of Health and Human Services, Office of
 Community Services;  Department of Justice.
 
                              C.  Conclusion
 
    We find that this proposal would directly interfere with the Agency's
 rights under section 7106(a)(2)(C) of the Statute and therefore does not
 constitute a negotiable procedure under section 7106(b)(2) of the
 Statute.  We also find that the proposal would not excessively interfere
 with management's rights and, thus, that it constitutes an appropriate
 arrangement for employees adversely affected by the exercise of such
 rights, within the meaning of section 7106(b)(3) of the Statute.
 However, we also hold, based upon the analysis provided in our Decision
 and Order on Remand in AFGE, Local 2782 and Bureau of the Census, 14
 FLRA 801 (1984), affirmed in the Authority's Decision and Order on
 Motion for Reconsideration (July 11, 1985), petition for review filed,
 No. 85-1562 (D.C. Cir. September 6, 1985), that this proposal conflicts
 with FPM chapter 335, subchapter 1-4, and, therefore, is nonnegotiable
 under section 7117(a)(1) of the Statute.
 
                                IV.  Order
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that th