31:1053(84)NG - ACTION Employees Local, AFSCME and ACTION -- 1988 FLRAdec NG



[ v31 p1053 ]
31:1053(84)NG
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.