32:0557(82)NG - - NLRB Professional Association and General Counsel, NLRB - - 1988 FLRAdec NG - - v32 p557
[ v32 p557 ]
The decision of the Authority follows:
32 FLRA No. 82
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL LABOR RELATIONS
BOARD PROFESSIONAL ASSOCIATION
NATIONAL LABOR RELATIONS BOARD
Case No. 0-NG-1499
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) and presents an issue concerning the negotiability of one proposal. For the reasons stated below, we find that the proposal, which permits employees to request assignment to a different supervisor and establishes procedures for such requests, is within the duty to bargain because it concerns a "condition of employment" as defined in the Statute and does not conflict with management rights.
The dispute arose between the parties when the Appellate Court Branch, Division of Enforcement Litigation of the Office of the General Counsel, instituted a change in the way it assigns employees to first-line supervisors. Each first-line supervisor has primary responsibility for three or four staff attorneys. The first-line supervisor functions as a "primary supervisor" for the employees for which the supervisor has principal responsibility. Prior to the change, staff attorneys would also perform case assignments under the supervision of other supervisors who would have input into their performance appraisals. Staff attorneys were not assigned to work on two cases in a row with the same supervisor. Therefore, staff attorneys briefed approximately one-half their cases under the supervision of a supervisor other than their primary supervisor.
On August 31, 1987, a new Branch Chief was appointed to the Appellate Court Branch. As part of the new Branch Chief's overall management plan, the Branch Chief announced that effective September 22, 1987, staff attorneys would be assigned to primary supervisors for a minimum of 1 year. For that year, each staff attorney would work exclusively under the supervision of his or her primary supervisor.
III. The Proposal
Procedures for Interim Reassignments
An attorney who believes that his or her supervisory assignment is interfering with his or her efficiency or otherwise is deleterious to the interests of the Agency may request through the Professional Association that Management change the assignment effective on the six month anniversary date of the implementation of the experimental program.
(1) Not more than 30 nor less than 14 days prior to the six month anniversary date of the implementation of the experimental supervisory assignment system, Management shall notify all unit attorneys of this opportunity. This notice shall include, as a minimum, the distribution of this section of the agreement to all unit attorneys.
(2) Attorneys may indicate, in their requests for reassignment, their reasons for the request and supervisor preferences.
(3) To the degree it is consistent with Agency operating needs, Management will consider such requests and will consider attorney reassignment preferences in making supervisory reassignments, provided that nothing herein shall prevent Management from exercising its discretion in making individual attorney assignments or in determining the appropriateness of reassignment.
(4) If in the judgment of Management reassignment of an attorney would not serve the interests of the Agency or is otherwise inappropriate, Management shall notify the Professional Association with reasons. To the maximum extent possible, such notification will be given within five working days after the determination.
(5) Management shall provide the reasons in writing and in a sealed envelope. The Professional Association shall not open the envelope unless requested to do so by an attorney whose request for reassignment was denied or a grievance regarding a failure by Management to abide by the procedures set forth herein is filed. Notwithstanding the foregoing, at such time as negotiations as to a successor agreement are commenced, the Professional Association's designees for the purposes of negotiating such an agreement may open and review the contents of the envelope for the purpose of preparing for such negotiations.
IV. Positions of the Parties
The Agency argues that the proposal is nonnegotiable because it does not concern a "condition of employment" as defined under section 7103(a)(14) of the Statute and as discussed in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986). The Agency contends that the proposal is principally focused on nonbargaining unit positions and that the proposal's effect on the working conditions of bargaining unit employees is speculative.
The Agency also contends that the proposal conflicts with its right to assign work under section 7106(a)(2)(B) because (1) it requires the Agency to create a written record of a wholly managerial function and (2) the assignment of employees to supervisors constitutes an assignment of work to the supervisors. The Agency also argues that private sector case law does not permit negotiation over supervisory assignments.
The Union argues that the Agency misconstrues the proposal. The Union asserts that the proposal does not dictate how the Agency will make assignments to its supervisors. The Union maintains that the proposal establishes a procedure by which employees may request to be assigned to another supervisor under certain circumstances. It states that the proposal requires only that (1) the Agency consider the request, and (2) provide a reason if the Agency exercises its discretion to deny the request. The Union states that under the proposal the only grievable matter would be a failure to satisfy the procedural aspects of the agreement. The Union argues that the relationship between a supervisor and attorney has a direct impact on the attorney's working conditions and that the proposal, therefore, meets the test set forth in Antilles Consolidated School System.
Finally, the Union argues that the proposal is an appropriate arrangement for bargaining unit employees who are adversely affected by management's decision to change the manner in which employees are supervised. The Union contends that the change will adversely affect employees' performance appraisals, professional development and promotion potential.
V. Analysis and Conclusions
A. The Meaning of the Proposal
The Union states that the proposal requires the Agency to entertain requests from employees who wish to be reassigned to a different supervisor because their current supervisory assignment interferes with their efficiency or otherwise is deleterious to the interests of the Agency. The Union states that the proposal requires only that the Agency consider requests and that the proposal does not limit the Agency's discretion to grant or deny requests. The Union states that although the proposal requires the Agency to provide reasons for a denial of a request, the proposal does not prescribe the nature or specificity of the reasons. The Union also states that the proposal does not restrict the Agency's discretion to decide who will perform the various functions provided for in the proposal.
We find that the Union's statements as to the intent of its proposal are consistent with the wording of the proposal and we adopt them for purposes of this decision.
B. The Proposal Involves a Condition of Employment of Bargaining Unit Employees
Under the statutory scheme established by sections 7103(a)(12), 7106, and 7114, a proposal which is consistent with law and regulation is, nonetheless, outside the duty to bargain unless it directly affects the conditions of employment of bargaining unit employees. Antilles Consolidated School System, 22 FLRA 235, 236 (1986). In Antilles, the Authority set forth the test for determining whether a proposal involves a condition of employment of bargaining unit employees under section 7103(a)(14). 22 FLRA at 236-37. The test contains two factors:
1. Whether the matter proposed to be bargained pertains to bargaining unit employees; and
2. The nature and extent of the effect of the matter proposed to be bargained on working conditions of those employees.
In Antilles, we stated the following about the first factor of the test:
For example, as to the first factor, the question of whether the proposal pertains to bargaining unit employees, a proposal which is principally focused on nonbargaining unit positions or employees does not directly affect the work situation or employment relationship of bargaining unit employees. But, a proposal which is principally focused on bargaining unit positions or employees and which is otherwise consistent with applicable laws and regulations is not rendered nonnegotiable merely because it would have some impact on employees outside the bargaining unit. (Citations omitted.)
22 FLRA at 237.
In determining whether a proposal's impact on nonunit employees is sufficient to make the proposal nonnegotiable, the Authority balances the union's right to negotiate over conditions of employment of unit employees against the agency's right to determine the conditions of employment of nonunit employees. American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 FLRA 478 (1986) (OPM), petition for review filed sub nom. American Federation of Government Employees, Local 32, AFL-CIO v. FLRA, No. 86-1447 (D.C. Cir. Aug. 11, 1986). In OPM, 22 FLRA at 482, we noted:
In weighing the parties' respective rights, we will determine whether the nature and degree of the impact of the proposal is so intrinsically related to the working conditions of nonunit employees so as to invade the purview of other unit representatives or require the agency to act in a way that will have a significant effect on the rights of employees not represented by the union offering the disputed proposal. In such a case, management is not required to bargain. However, where the proposal has only a limited or indirect effect on the interests of employees outside the bargaining unit it will be subject to appropriate negotiations.
A proposal which has only an indirect effect on the working conditions of nonunit employees is negotiable. Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 and Naval Underwater Systems Center, Newport, Rhode Island, 28 FLRA 352 (1987) (Proposal 1).
Contrary to the Agency's contention, we find that this proposal is principally focused on bargaining unit employees and only indirectly affects nonunit employees. The proposal provides bargaining unit employees with an opportunity under limited circumstances to request a reassignment to a different supervisor and to have their requests considered by the Agency. The proposal does not require the Agency to grant the requests. Therefore, it does not restrict management's discretion concerning the assignment of employees to supervisors. The proposal does not directly determine the conditions of employment of supervisors in this connection. Rather, it leaves such determinations wholly within the discretion of management. Based on these considerations, we conclude that the proposal satisfies the first factor of the Antilles test.
The second factor relates to the effect of a proposal on employees' working conditions: whether there is a direct connection between the proposal and the work situation or employment relationship of bargaining unit employees. Antilles, 22 FLRA 235, 237. The Agency describes the assignment of employees to a supervisor as placing the immediate responsibility for the "work, training and career development" of those employees with that supervisor. Agency statement of position at 14. "Work, training and career development" are significant elements in the work situation of employees. In our view, determinations as to who is responsible for such matters is, likewise, directly connected to the work situation of an employee. We, therefore, find that an employee's assignment to a particular supervisor is directly connected to the work situation and that the proposal satisfies the second factor of the Antilles test.
C. The Proposal Does Not Interfere with the Agency's Right to Assign Work
The Agency makes two arguments in support of its claim that its proposal interferes with its right to assign work. The Agency contends that (1) the assignment of an employee to a supervisor constitutes an assignment of work to the supervisor; and (2) by requiring the Agency to provide reasons for denying an employee's request, the proposal requires the Agency to create and maintain records of managerial and supervisory activities.
As to the Agency's first argument, we find that the proposal does not interfere with the Agency's right to assign work. The proposal requires only that the Agency consider employee requests regarding supervisory assignments. Proposals which require an agency to only consider exercising its management rights in a particular manner do not interfere with those rights. See, for example, American Federation of Government Employees, AFL-CIO, National Council of VA Locals and Veterans Administration, 29 FLRA 515, 522 (1987), petition for review filed sub nom. Veterans Administration v. FLRA, No. 87-1727 (D.C. Cir. Nov. 27, 1987); AFSCME, Local 2027 and ACTION, 27 FLRA 191 (1987) (Proposal 2); American Federation of Government Employees, AFL-CIO and Department of Housing and Urban Development, 21 FLRA 354 (1986) (Proposal 1).
The Agency's second contention relies on the Authority's decision concerning Proposal 3 in National Federation of Federal Employees, Local 29 and U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 20 FLRA 531 (1985). That proposal required the agency to create and maintain records of the time spent by supervisors and management officials on labor management activities. The Authority found the proposal to be nonnegotiable. The decision relied on National Treasury Employees Union, Chapter 91 and Department of the Treasury, Internal Revenue Service, Southwest Region, 17 FLRA 534 (1985), in which the Authority held that Proposal 2, which required the agency to create and maintain records of the time spent by supervisors preparing evaluations of employees, was nonnegotiable. In both Corps of Engineers and Internal Revenue Service, the Authority found that proposals which have the effect of requiring management officials and supervisors to create and maintain records relating to the performance of their functions constituted the assignment of specified duties to the supervisors and management officials and, therefore, conflicted with section 7106(a)(2)(B).
The proposal in this case is distinguishable from the proposals in dispute in Corps of Engineers and Internal Revenue Service. The proposal in the instant case does not require the Agency to assign the responsibility for preparing the Agency's statement of the reasons for denying an employee's request to any particular employee. Therefore, the proposal does not require a particular employee to perform a particular task. Rather it leaves intact the Agency's discretion to assign any duties that flow from this proposal to whomever it wishes.
Our decision in Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, Illinois, 27 FLRA 714 (1987), petition for review filed sub nom. Veterans Administration Medical Center, North Chicago, Illinois v. FLRA, No. 87-1405 (D.C. Cir. Aug. 17, 1987), is applicable here. In that case, Proposal 4 required the Agency to take particular actions with respect to the conduct of a wage survey. The proposal was silent concerning who would perform the required tasks. We noted that to conclude that a proposal interfered with management's right to assign work simply because it required an agency to take some action would completely nullify the obligation to bargain because no obligation of any kind could be placed on management through negotiations. Id. at 727-28.
The proposal in the instant case does not specify who will perform the tasks associated with providing reasons for the Agency decision. Therefore, consistent with our decision in Veterans Administration Medical Center, North Chicago, we reject the Agency's argument that the proposal conflicts with the right to assign work. We find, instead, that the proposal constitutes a negotiable procedure under section 7106(b)(2) for the consideration of employees' requests to be assigned to different supervisors. See, for example, American Federation of Government Employees, AFL-CIO, Meat Grading Council of Locals and Department of Agriculture, Meat Grading and Certification Branch, 22 FLRA 496 (1986) (Proposals 3 and 4) (proposals establishing procedures for the agency to consider employee requests relating to the exercise of management rights are negotiable under section 7106(b)(2)); National Association of Government Employees, Local R1-144 and Department of the Navy, Naval Underwater Systems Center, 29 FLRA 471, 473 (1987), petition for review filed sub nom. Department of the Navy, Naval Underwater Systems Center v. FLRA, No. 87-2024 (1st Cir. Nov. 27, 1987) (proposal requiring that reasons for a furlough be given employees is a negotiable procedure).
Since we find that this proposal does not interfere with the Agency's right to assign work, it is not necessary to address the Union's argument that the proposal constitutes an appropriate arrangement under section 7106(b)(3).
D. The Agency's Arguments Concerning the Applicability of Private Sector Case Law Are Unpersuasive
The Agency argues that decisions concerning supervisory assignments are not negotiable in the private sector under the "Labor Management Relations Act." In support, the Agency relies on several decisions of the National Labor Relations Board and reviewing courts. The Agency describes these decisions as holding that "concerted activity aimed at replacing or restoring particular supervisors" is not protected unless there is a "showing that the quality or character of the supervision has a direct impact on the employees' job security, ability to perform, or other conditions of employment." Agency Response at 19-20.
The Agency's argument, however, is based on a mischaracterization of the proposal. Contrary to the Agency's interpretation, the proposal does not require bargaining over the supervisory assignment itself. Rather, the proposal establishes a procedure by which individual employees may reques