31:1053(84)NG - ACTION Employees Local, AFSCME and ACTION -- 1988 FLRAdec NG
[ v31 p1053 ]
The decision of the Authority follows:
31 FLRA No. 84 ACTION EMPLOYEES LOCAL AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES Union and ACTION Agency Case No. 0-NG-1460 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case This case is before the Authority because of a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of two Union proposals. The proposals were submitted in response to a proposed reorganization by the Agency. We conclude that the first proposal is outside the duty to bargain because it would eliminate the Agency's right to determine the staffing levels of particular offices. As such, the proposal involves the numbers, types, and grades of employees assigned to a particular office, a matter which is negotiable only at the Agency's election. We conclude that the second proposal, which would require that the workload be equally shared by the Agency's State Offices, is outside the duty to bargain as it interferes with the Agency's right to assign work under section 7106(a)(2)(B). II. Proposal 1 Agency agrees to clearly define the criteria upon which it has identified offices from which employees will be relocated (WA, NE, and MN). Assuming the Agency's criteria can be met in other offices, the agency will conduct a survey to locate employees who will voluntarily transfer. If more than one volunteer is identified, the senior employee with the agency will have preference. The survey will require a verifiable response from all unit employees. No employee will be officially reassigned until the survey findings have been reviewed by and discussed with the Union. (Only the second paragraph of the proposal is in dispute.) A. Positions of the Parties The Agency contends that the proposal involves the numbers, types, and grades of employees to be assigned to its offices, a matter which is negotiable only at the election of the Agency under section 7106(b)(1) of the Statute. The Agency's State Program Offices normally have from three to five employees including a supervisor and a secretary. The Agency decided to reassign one State Program Specialist from each of its Washington, Minnesota and Nebraska State Offices to offices in California, Illinois and Kansas where additional personnel were needed. The Agency concedes that most State Program Specialists are qualified to work in any office. However, the Agency asserts that the proposal does not concern the question of the Agency's right to reassign employees from a pool of equally qualified employees. Rather, the Agency maintains that given the small size of its offices, the proposal directly affects the staffing levels of its individual offices. Therefore, the Agency concludes that the proposal is so directly and integrally related to the numbers, types and/or grades of employees assigned to its offices as to be determinative of them. Thus, the proposal concerns a matter involving section 7106(b)(1) of the Statute, which is negotiable only at the election of the Agency. The Union asserts that its proposal merely provides a procedure by which the Agency will select from a pool of equally qualified candidates those employees to be transferred to the offices identified by the Agency as needing additional staffing. B. Analysis and Conclusions We find that the proposal interferes with the Agency's right under section 7106(b)(1) to determine the numbers, types, and grades of employees assigned to a particular State Office. The proposal would require the Agency to determine whether there are offices other than the three offices already identified by the Agency which could afford to lose an employee. This determination would be based on the criteria already used by the Agency in deciding which offices could afford to lose an employee. The Union's proposal presumes that other State Offices would also meet those criteria. Therefore, the pool of offices from which employees could be reassigned to the three offices which need an additional employee would be expanded from the three offices selected by the Agency. The proposal would then require the Agency to conduct a survey among the employees in all the eligible losing offices to determine whether there were volunteers interested in being reassigned to the gaining State Offices. Finally, the proposal requires that the senior employee within any pool of volunteers would have preference in selecting a reassignment. An agency must establish that a proposal is directly and integrally related to the numbers, types and/or grades of employees or positions assigned to an organizational subdivision, work project or tour of duty in order to sustain an argument that a matter is negotiable only at the agency's election under section 7106(b)(1) of the Statute. National Treasury Employees Union and Internal Revenue Service, 28 FLRA 40 (1987). We conclude that the Union's proposal would have a direct impact on the Agency's staffing patterns within the meaning of section 7106(b)(1) because the effect of the Union's proposal would be to shift the determination as to the number of employees to be assigned to particular offices from the Agency to the "lottery" system encompassed by the proposal.