28:1134(147)NG - AFGE, LOCAL 1625 VS NAVY, FLEET COMBAT TRAINING CE



[ v28 p1134 ]
28:1134(147)NG
The decision of the Authority follows:


28 FLRA NO. 147

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1625

              Union

      and

U.S. NAVY FLEET COMBAT TRAINING
CENTER, ATLANTIC, DAM NECK,
VIRGINIA BEACH, VIRGINIA

              Agency

Case No. 0-NG-1417

DECISION AND ORDER ON NEGOTIABILITY ISSUE

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). It raises issues concerning the negotiability of a single proposal. 1 For the reasons which follow, we hold that the proposal is outside the duty to bargain.

II. Proposal

Section 2802.

It is the responsibility of the Employer to assure that efforts will be made to utilize to the fullest extent the skills of employees and to provide the maximum feasible opportunities for employees to enhance their skills through on-the-job training, as well as any available agency sponsored work-study or other training programs so that they may perform at their highest potential and advance in accordance with their abilities. 

III. Positions of the Parties

The Agency contends that the proposal interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. According to the Agency, the effect of the proposal would be to require management to attempt to assign only certain work to employees. The Agency also argues that the proposal would require it to provide specific on-the-job training which is unrelated to management needs. Further, the Agency contends that the Authority should reject the "excessive interference" standard for determining whether a proposal is an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute. Finally, the Agency contends that even under that standard, the proposal in this case is not an appropriate arrangement under section 7106(b)(3) because there is no adverse effect on employees resulting from the exercise of a management right. See Agency Statement of Position at 8.

The Union contends that the proposal is a procedure and an appropriate arrangement for the exercise of management's right to assign work; in this instance, training. The Union argues that the proposal provides that, to the extent practicable, management will, consistent with applicable law and regulation, afford employees the opportunity to enhance their skills through participation in available Agency-sponsored work-study or other existing training programs.

IV. Analysis and Conclusion

This proposal would require the Agency to make efforts to use employees' skills to the fullest extent and to provide the maximum feasible number of opportunities for employees to improve their skills through any of a variety of training sources. Although the record is not clear, it appears that management's obligations under this proposal extend only to job-related training and we adopt that interpretation for purposes of this decision. See Union Response at 4.

1. The proposal directly interferes with management's right to assign work.

The Authority has consistently held that proposals requiring an Agency to provide job-related training are outside the duty to bargain because the assignment of that type of training constitutes an assignment of work. American Federation of Government Employees, Local 1760, AFL - CIO and Department of Health and Human Services, Social Security Administration, 23 FLRA No. 21 (1986) (Proposal 8). See also International Association of Fire Fighters Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438 (1980) (Proposal I).  

While the Union argues that the proposal allows management to determine what type of training will be given, the proposal does obligate management to provide training, such as on-the-job training, work-study or other training programs. Based on existing Authority precedent, therefore, by obligating management to provide certain types of job-related training, the proposal directly interferes with management's rights under section 7106(a)(2)(B) of the Statute. See, for example, Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, Illinois, 27 FLRA No. 79 (1987), petition for review filed sub nom. Veterans Administration Medical Center, North Chicago, Illinois v. FLRA, No. 87-1405 (D.C. Cir. Aug. 14, 1987) (Proposal 5); American Federation of Government Employees, Local 32, AFL - CIO and Office of Personnel Management, 26 FLRA No. 55 (1987) (Proposal 1).

Although the Union states that the proposal is intended only to require the Agency to "assure that efforts will be made" to provide training, that fact does not render the proposal negotiable. Proposals which require management to make an effort to exercise a management right in a particular manner are nonnegotiable. See American Federation of Government Employees, AFL - CIO, National Immigration and Naturalization Service council and U.S. Immigration and Naturalization Service, 27 FLRA No. 68 (1987) (Provision 6); Maritime/Metal Trades Council and Panama canal commission, 18 FLRA 326 (1985) (Proposal 5); and Maritime Metal Trades Council and Panama canal commission, 17 FLRA 890 (1985) (Proposal 4).

The proposal also requires management to provide the "maximum feasible opportunities" for employees to enhance their skills through training. The use of that term likewise is not sufficient to make the proposal negotiable. It is well established that phrases such as "provide the maximum feasible opportunity" and "to the maximum extent possible" impose substantive conditions on management's exercise of its reserved rights under section 7106 of the Statute. Veterans Administration Medical Center, North Chicago, Illinois, (Proposal 3). See also Federal Union of Scientists and Engineers, Local R1-144 and Department of the Navy, Naval Underwater Systems Center, 26 FLRA No. 67 (1987); National Treasury Employees Union and Department of Health and Human Services, Region X, 25 FLRA No. 88 (1987) (Proposal 5).

Finally, contrary to the Union, we do not view the proposal as reflecting applicable legal requirements. The  statutory and regulatory provisions cited by the Union express the Federal Government's policy favoring employee training programs but do not create an obligation on the part of the Agency to provide training to employees under the substantive conditions expressed in the proposal. Moreover, even assuming that those statutory and regulatory provisions create an obligation on the part of the Agency to provide training, that fact would not change the result here. The substantive terms of the proposal--that management make efforts to provide the maximum feasible opportunities for training--exceed the requirements of any statutory or regulatory obligation and impose an independent contractual obligation to provide training which interferes with management's right to assign work. See Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA No. 29 (1987), petition for review filed sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 26, 1987) (Sections 3.H and 3.J)

2. The proposal does not involve a procedure within the meaning of section 7106(b)(2).

As found above, the proposal directly interferes with management's right under section 7106(a)(2)(B) by obligating the Agency to provide training. Accordingly, the proposal does not constitute a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See National Federation of Federal Employees, Local 1454 and Veterans Administration, 26 FLRA No. 99 (1987) (Proposals 2-6).

3. The proposal is not an arrangement within the meaning of section 7106(b)(3).

We turn now to the question of whether the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), the Authority stated that henceforth it would determine whether a proposal constitutes an appropriate arrangement for employees adversely affected by the exercise of a management right by determining whether the proposal "excessively interferes" with the exercise of a management right.

The threshold question in applying the "excessive interference test" is whether the proposal is an "arrangement" for adversely affected employees. In Patent and Trademark Office, Department of Commerce, slip op. at 12-13, we found that Section 3.K, which prescribed  criteria for the establishment of performance standards and rating levels, did not qualify for consideration under section 7106(b)(3). We reasoned that the establishment of performance standards did not by itself adversely affect employees. Any adverse effect would not occur until an action was taken against an employee based on the application of those job requirements to the employee. Thus, because Section 3.K was not an "arrangement," it did not qualify for consideration under section 7106(b)(3), and therefore we did not determine if the proposal was an "appropriate" arrangement.

The proposal in this case requires that the Agency provide training so that employees may enhance their skills to their fullest potential, and so that the employees may advance in accordance with their abilities. In our view, this proposal, like Section 3.K in Patent and Trademark Office, does not address an adverse effect on employees which is the result of the exercise of a management right. Although the proposal provides a benefit to employees, it is not a benefit which mitigates against some adverse consequence resulting from a management action. It simply would enable employees to improve their existing skills and abilities. Thus, we need not determine whether the proposals are "appropriate" arrangements since they do not qualify for consideration under section 7106(b)(3). See National Federation of Federal Employees, Local 1454 and Veterans Administration, 26 FLRA No. 99 (1987) (Proposals 2-6); National Federation of Federal Employees, Local 1461 and Department of the Navy, U.S. Naval Observatory, 26 FLRA No. 96 (1987) (Provision 2).

V. Order

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