32:0210(36)NG - - AFGE Local 85 and VA Medical Center, Leavenworth, KS - - 1988 FLRAdec NG - - v32 p210



[ v32 p210 ]
32:0210(36)NG
The decision of the Authority follows:


32 FLRA No. 36

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 85

Union

and 

VETERANS ADMINISTRATION MEDICAL

CENTER, LEAVENWORTH, KANSAS

Agency

Case No. 0-NG-1481

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). It concerns the negotiability of 12 proposals relating to the reassignment of three unit employees. The Union did not file a response to the Agency's Statement of Position. The Union did file "additional statements" of the Vice President of the local which were untimely and, therefore, have not been considered.

We find that Proposals 2, 3, 4, 8, 9 and 10(*) are moot because they involve the prospective implementation of reassignments which have already been implemented. Proposal 7 is moot because the parties have reached agreement on the proposal. Proposals 1, 6, 11 and 12 are outside the duty to bargain because they interfere with management's rights to assign employees, assign work, determine internal security, and make selections. The Union has failed to establish a record sufficient for the Authority to make a negotiability determination on Proposal 5.

II. Background

The proposals in this case were submitted in connection with the reassignment of three employees at the Veterans Administration Medical Center, Leavenworth (VAMC). The Agency reassigned two employees from the Laundry Service after they were involved in several name-calling incidents and a physical altercation. One Laundry Service worker was reassigned to the Dietetic Service and the other Laundry Service worker was reassigned to the position of Housekeeping Aide. The third employee requested and received a reassignment from the Dietetic Service to the Laundry Service. Management determined that reassignment of the employees to different services was in the interest of the safety of the employees and property at the VAMC.

On October 15, 1987, the Agency notified the Union and employees of the reassignments which were scheduled to take effect on November 1, 1987. The Agency implemented the reassignments on November 8, 1987, after negotiating with the Union, but before the parties reached an agreement. The Union filed an unfair labor practice charge and this negotiability appeal, which was stayed pending the outcome of the unfair labor practice charge. By letter dated February 8, 1988, the Union advised the Authority that the unfair labor practice charge had been withdrawn. The Authority notified the parties on February 18, 1988, that it would resume processing of the Union's negotiability appeal.

III. Preliminary Issue

The Agency contends that Proposals 2, 3, 4, 6, 7, 8 and 9 are moot because "the basis for the dispute giving rise to the proposal{s} is . . . no longer viable." Agency Statement of Position at 9. The Agency argues that because the proposals relate to three specific reassignments which have already taken place, the proposals concerning how the reassignments will be implemented have no possible application.

The Agency's claim that the Union's proposals relate to three specific reassignments which have already been implemented by the Agency is not controverted in the record. Since Proposals 2, 3, 4, 8, and 9 involve the prospective implementation of reassignments which have already been implemented, the dispute as to those proposals has been rendered moot. Under the circumstances, a bargaining order would serve no purpose; therefore, we dismiss the portion of the Union's petition relating to Proposals 2, 3, 4, 8, and 9. See Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 628, 632-33 (1987) petition for review filed sub nom. Overseas Education Association, Inc. v. FLRA, No. 87-1575 (D.C. Cir. Oct. 14, 1987) (Proposal 3a is moot because the regulation it sought to delay has been implemented for more than 1 year); National Treasury Employees Union and Department of Health and Human Services, Region X, 25 FLRA 1041, 1054 (1987) (proposals involving the prospective implementation of a RIF which had been implemented dismissed as moot). We will discuss Proposal 6 in detail below since that proposal is not limited to the prospective implementation of the reassignments in question.

We dismiss the Union's petition as to Proposal 7 because the Union and the Agency both state that the parties have reached agreement on the proposal. See Petition for Review at 3 and Agency Statement of Position at 27. Therefore, Proposal 7 is also moot. See American Federation of Government Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 23 FLRA 193-94 (1986).

Although the Agency did not allege that Proposal 10 is moot, we find that the proposal must be dismissed on that basis. Proposal 10 concerns the prospective reassignment of the Dietetic Service employee identified in the Union's appeal. Since the reassignment has already been implemented, the dispute as to Proposal 10 is rendered moot.

IV. Proposal 1

Reassignments rescinded and employees remain in their present positions due to no security problem.

A. Positions of the Parties

The Agency contends that Proposal 1 violates management's right to assign employees under section 7106(a)(2)(A) and management's right to determine internal security practices under section 7106(a)(1) of the Statute. The Agency also argues that Proposal 1 is not an appropriate arrangement.

The Union states that Proposal 1 is intended to "maintain the status quo until such time as we were able to effectively deal with the changes." Petition for Review at 2.

B. Discussion

We find that Proposal 1 interferes with the Agency's right to assign employees within the meaning of section 7106(a)(2)(A) of the Statute. The right to assign employees includes the right to decide the particular position to which an employee will be assigned. National Treasury Employees Union and Internal Revenue Service, 28 FLRA 40 (1987), citing American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980). By requiring that the Agency rescind the reassignments and place the employees in their original positions, the proposal would preclude management from carrying out the reassignments as an exercise of its right to assign employees to positions. The proposal violates management's right under section 7106(a)(2)(A) of the Statute. See American Federation of Government Employees, Local 2663 and Veterans Administration Medical Center, Kansas City, Missouri, 31 FLRA 988, 989 (1988). See also Naval Undersea Warfare Engineering Station, Keyport, Washington and International Association of Machinists and Aerospace Workers, Local 282, 22 FLRA 957 (1986) (arbitrator's award rescinding agency's assignment of grievant and directing that he be reassigned to his original position or a suitable equivalent interferes with agency's right to assign employees).

Proposal 1 also interferes with the Agency's right to determine its internal security practices. Management's right to determine internal security practices includes the right to determine what is necessary to safeguard Agency employees or property against internal or external risks. See National Association of Government Employees, Local R4-6 and Department of the Army, Fort Eustis, Virginia, 29 FLRA 966, 970-73 (1987). In the instant case, the Agency determined that the reassignment of the employees to different services was in the interest of the safety of the employees and property at the VAMC. We find that the Agency's decision to reassign the employees to different positions and departments of the Agency constitutes the Agency's judgment that the security of its operation would be enhanced by the separation and reassignment of those employees in order to avoid verbal and physical confrontations in the workplace. See American Federation of Government Employees, AFL-CIO, Local 683 and Department of Justice, Federal Correctional Institution, Sandstone, Minnesota, 30 FLRA 497 (1987).

Because the Union does not contend that the proposal is intended as an arrangement for employees adversely affected by the exercise of management's rights, we do not reach the issue of whether the proposal is negotiable under section 7106(b)(3) of the Statute. See Veterans Administration Medical Center, Kansas City, Missouri, 31 FLRA at 989-90.

V. Proposal 5

All employees be treated the same in like situations.

A. Positions of the Parties

The Agency contends that Proposal 5 should be dismissed because it is not specific enough for the Authority to determine its negotiability. The Agency argues that the wording of the proposal is vague and that the Union's statement of meaning differs from the language of the proposal.

The Union states that Proposal 5 would provide for fair and equitable treatment as required by the master labor agreement.

B. Discussion

This proposal requires that employees be treated the same in like situations. The Union does not explain what effect the proposal would have on the reassignments which gave rise to this dispute. The wording of the proposal may be read to require management always to take the same action in a given set of circumstances and, so interpreted, would dictate management action. See discussion of Proposal 11 below. Interpreted in this manner, the proposal is distinguishable from proposals requiring a fair and equitable distribution of assignments, which are considered negotiable procedures. Those proposals are not concerned with whether an employee will or will not be assigned to perform certain duties, but, merely provide for equity in the distribution of assignments among employees. See Illinois Nurses' Association and Veterans Administration Medical Center, Hines, Illinois, 28 FLRA 212, 229 (1987).

Because we are unable to determine the effect of this proposal, we have no basis for determining whether the proposal is consistent with applicable law and regulation. Thus, Proposal 5 is not sufficiently specific and delimited in form and content to permit a determination as to its negotiability. See Fort Knox Teachers Association and Fort Knox Dependent Schools, 22 FLRA 815 (1986).

VI. Proposal 6

Assign all reassigned employees with the same hours, days off and holidays.

A. Positions of the Parties

The Agency contends that Proposal 6 is moot because the employees have already been reassigned and their tours of duty established. The Agency argues in the alternative that Proposal 6 violates management's right to assign employees under section 7106(a)(2)(A) and assign work under section 7106(a)(2)(B) of the Statute, is inconsistent with 5 C.F.R. º 610.121, and is negotiable only at the election of the Agency because it is integrally related to the number of employees assigned to a work project or tour of duty. Finally, the Agency argues that Proposal 6 is not an appropriate arrangement.

The Union states that the intent of this proposal is to alleviate or minimize the burden on the employees' personal lives.

B. Discussion

We reject the Agency's argument that Proposal 6 is moot because the reassignments in question have already occurred. The proposal could still be applied to establish the hours of work, days off and the holidays of the reassigned employees. Proposal 6 is nonnegotiable, however, because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Management's right to assign work under section 7106(a)(2)(B) includes the right to determine: (1) what particular duties will be assigned; (2) when work assignments will occur; and (3) to whom or to what position duties will be assigned. See National Association of Government Employees, Local R1-109, AFL-CIO and Veterans Administration Medical Center, Newington, Connecticut, 26 FLRA 532 (1987); Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Navy Public Works Center, Norfolk, Virginia, 21 FLRA 497 (1986).

Proposal 6 would preclude the Agency from determining when the duties of the newly assigned positions will be performed by requiring it to schedule work assignments consistent with the work schedule of the employee's previous position. See American Federation of Government Employees, AFL-CIO, Local 1738 and Veterans Administration Medical Center, Salisbury, North Carolina, 27 FLRA 52, 59 (1987); VA Medical Center, Newington, Connecticut, 26 FLRA at 533. The Agency states that Proposal 6 precludes the assignment of evening and weekend shifts to employees reassigned from the Laundry Service. We agree with the Agency that the proposal would have the effect of blocking the assignment of those employees to a Service which requires weekend or evening assignments. See Agency Statement of Position at 19-21. Like Proposal 1 in VA Medical Center, Newington, Connecticut, which precluded assignments on weekends, Proposal 6 requires the Agency to maintain the employees' previous schedule and, therefore, would determine days off. Based on the record, this proposal would preclude the assignment of weekend work to at least one of the employees who was reassigned. By limiting assignments on weekends, therefore, Proposal 6 is nonnegotiable because it violates management's right to assign work.

Since we have found that Proposal 6 violates management's right to assign work, we need not address the Agency's additional contentions that the proposal is inconsistent with other management rights and Government-wide regulations. Further, absent a Union contention that the proposal is intended as an arrangement, we need not address the question of whether Proposal 6 is an appropriate arrangement. See our discussion in Section IV.B. above.

VII. Proposal 11

The employees will not be reassigned back to the same service and location unless all employees are reassigned back to the same service/location.

A. Positions of the Parties

The Agency contends that Proposal 11 is vague and should be dismissed because it is not specific enough for the Authority to determine its negotiability. The Agency also contends that Proposal 11 violates management's right to assign employees under section 7106(a)(2)(A) by prohibiting the Agency from determining which employee will be assigned.

The Union states that Proposal 11 would provide fair and equitable treatment to all employees as required by the parties' master labor agreement.

B. Discussion

First, we reject the Agency's assertion that Proposal 11 is not specific enough for the Authority to make a negotiability determination. It is clear from the terms of the proposal and the record before us that the Union seeks to prevent the Agency from assigning any one of the employees involved in this dispute to his or her original position unless the Agency reassigns all three of the employees back to their original positions.

We find that Proposal 11 is outside the duty to bargain because it interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. The proposal would have the effect of forcing the Agency to reassign employees to certain positions even where those reassignments were not desired by management or necessary to meet mission requirements. The Agency would also be precluded from reassigning any one of the three employees involved in this dispute to perform the duties of a specific position if it could not also reassign the other employees.

Proposal 11 conditions the exercise of management's right to assign employees on the assignment of certain other employees. Proposals which place restrictions and impose conditions on the exercise of management's rights interfere with the exercise of those rights and are nonnegotiable. See, for example, National Treasury Employees Union and Department of the Treasury and U.S. Customs Service, 31 FLRA 181, 183-85 (1988) (provisions which would prohibit management from reassigning an employee unless the employee consents held to interfere with management's right to assign employees); National Federation of Federal Employees, Local 29 and Department of the Army, Kansas City District, U.S. Army Corps of Engineers, Kansas City, Missouri, 27 FLRA 404 (1987) (proposal conditioning the exercise of management's right to discipline upon the Agency's relinquishment of its right to impose financial liability directly interferes with management's rights); American Federation of Government Employees, Local 1760, AFL-CIO and Department of Health and Human Services, Social Security Administration, 23 FLRA 168, 171-74 (1986) (proposals which place restrictions and impose conditions on the exercise of management's right to evaluate its employees are nonnegotiable).

Because Proposal 11 conditions the exercise of management's right to assign employees to a position on the assignment of other specified employees, the proposal directly interferes with management's rights under section 7106(a)(2)(A) of the Statute. See National Labor Relations Board Union, Local 19 and National Labor Relations Board, Region 19, 2 FLRA 775 (1980) (proposal establishing a condition upon management's ability to assign specified duties to an identified employee is inconsistent with the agency's right to assign work).

VIII. Proposal 12

Vacant positions will be filled in accordance with past practice (i.e., announcement, qualified candidates, selection).

A. Positions of the Parties

The Agency contends that Proposal 12 violates management's right to fill positions from any appropriate source because it requires the filling of a vacancy and limits the sources that the Agency may use to fill the vacancy. The Agency asserts that the proposal falsely implies that a past practice exists whereby vacancies are not filled by reassignments.

The Union states: "{o}ur reasoning and intent was fair and equitable treatment and a prevention of preselection." Petition for Review at 3.

B. Discussion

Proposal 12 establishes the process for filling vacant positions at the Agency. The Agency interprets the proposal as specifying the particular source from which it may fill a vacant position and as precluding the use of any other source. The Agency asserts that interpreted in this manner, Proposal 12 is nonnegotiable because it limits management to choosing from among properly rated and ranked candidates for promotion and precludes the use of reassignment as a source for filling vacancies. See Agency Statement of Position at 39. We adopt the Agency's interpretation for the purpose of this decision since it is consistent with the wording of the proposal and is not controverted in the record.

We find, contrary to the Agency's argument, that the proposal does not require the filling of a vacancy. Rather, the proposal applies only after management decides to fill a vacant position.

Management has the right to make selections for appointments from among properly ranked and certified candidates for promotion under section 7106(a)(2)(C)(i) or from any appropriate source under section 7106(a)(2)(C)(ii). See Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard, 31 FLRA 131, 135 (1988). Proposals that restrict management to filling positions from among properly ranked and certified candidates and preclude it from filling those positions from other sources interfere with management's right to select under section 7106(a)(2)(C). See American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587, 1601-02 (1987) (Provision 6).

In this case, the proposal would limit the source from which management may make selections to the list of candidates for promotion obtained as a result of a rating and ranking procedure. Thus, once a list of qualified candidates is prepared, the Agency must fill the vacancy with an employee from that list and is precluded from filling the vacancy from any other source. Therefore, the proposal would limit the Agency to making selections from the "source" specified in the proposal and would prevent it from filling a vacant position from other appropriate sources, such as reemployment or repromotion eligibles, or transfer or reinstatement, under section 7106(a)(2)(C)(ii).

In Marine Corps Logistics Base, the Authority held that a provision which restricts the agency when filling vacancies to making selections from a certificate of "highly qualified" candidates interfered with the agency's right to select. The Authority found that the provision was not merely procedural, but concerned the substance of section 7106(a)(2)(C) which, among other