33:0380(48)NG - - AFGE Local 738 and Army, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, KS - - 1988 FLRAdec NG - - v33 p380
[ v33 p380 ]
The decision of the Authority follows:
33 FLRA No. 48
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DEPARTMENT OF THE ARMY
COMBINED ARMS CENTER AND FORT LEAVENWORTH
FORT LEAVENWORTH, KANSAS
DECISION AND ORDER ON NEGOTIABILITY ISSUE
October 26, 1988
Before Chairman Calhoun and Member McKee.
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 concerns the negotiability of a single proposal. The proposal arose during impact and implementation bargaining over a proposed realignment and change of the job description of an Engineering Technician, GS-802-09, from the Engineer Programs and Resource Management Division (EPRMD) to the Engineer Plans, Services, and Environmental Division (EPSED).
The proposal would require the Agency to assign either a volunteer or the person with the lowest seniority to the position. We find that the proposal is nonnegotiable because it interferes with the Agency's right to assign employees under section 7106(a)(2)(A) of the Statute.
II. The Proposal
a. The agency realignment of an Engineering Technician position, GS-802, Grade 9, from EPRMD to EPSED be completed by asking for a volunteer from the GS-802, Grade 9's in EPRMD.
b. Management agrees to issue the employee a letter prior to the proposed effective date of his "realignment-change in job number" outlining the reasons for the realignment. The employee will be given the opportunity to provide written agreement/disagreement with the management action.
c. The agency realignment of Engineering Technician position, GS-802, Grade 9, from EPRMD to EPSED be completed by filling the position with the person with the lowest seniority of the GS-802, Grade 9's in EPRMD.
[Only sections a and c are in dispute.]
III. Positions of the Parties (*)
The Union states that its intent is to negotiate over the procedures which the Agency will observe in reassigning an employee to the realigned position and appropriate arrangements for adversely affected employees. The Union argues that all employees holding Engineering Technician positions have the same qualifications and that the employee with the least seniority has the least training for his/her current position assignment. Therefore, the Union contends that the least senior employee would be qualified for and the least disadvantaged by being reassigned to the realigned position.
The Union asserts that the action involves a reassignment rather than an initial assignment, and that the "reassignment is covered under [section] 7106(a)(2)(B) and must be made . . . in accordance with applicable laws, rules and regulations." Petition for Review at 2. The Union contends that selectively assigning an employee under the conditions involved in this case constitutes a prohibited personnel practice.
The Agency contends that the proposal prohibits it from determining the qualifications needed by the employee to be reassigned and, thereby, interferes with management's right to assign employees under section 7106(a)(2)(A). The Agency argues that the proposal is not limited to establishing a procedure for selecting from among candidates who have been determined by management to be equally qualified. Rather, the proposal limits the Agency's ability to determine position and employee qualifications.
IV. Analysis and Conclusions
The proposal concerns the determination of which employee will be reassigned to the position of Engineering Technician in EPSED. The Agency asserts that the action involves management's right to assign employees under section 7106(a)(2)(A). Although the Union contends that section 7106(a)(2)(B) is applicable, the Union does not state which right under that section applies.
The right to assign employees under section 7106(a)(2)(A) encompasses the assignment of employees to positions. For example, Fort Knox Teachers Association and Fort Knox Dependent Schools, 25 FLRA 1119 (1987), petition for review as to other matters filed sub nom. Fort Knox Dependent Schools v. FLRA, Nos. 87-3395/3524 (6th Cir. Apr. 27, 1987). The right to assign employees encompasses "initial" assignments and reassignments. See, for example, Naval Air Rework Facility, Jacksonville, Florida and National Association of Government Inspectors and Quality Assurance Personnel, 27 FLRA 318 (1987). The right to assign employees includes the right to determine the particular qualifications and skills needed to perform the work of positions, including such job-related individual characteristics as judgment and reliability, and the right to determine whether employees meet those qualifications. See, for example, Id.; Fort Knox Dependent Schools.
The proposal in this case would require the Agency to assign either a volunteer from the GS-802, Grade 9, employees in EPRMD or the least senior of those employees to the position in EPSED. The proposal does not allow the Agency to make any judgment on the qualifications of those employees, relative to each other or to other employees, to perform the work of the position in EPSED. Therefore, the proposal directly interferes with the Agency's right to assign employees by depriving the Agency of the discretion to determine the qualifications and skills needed for the position in EPSED and to determine which employees possess those qualifications and skills. See, for example, Fort Knox Dependent Schools. Compare, Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 793 (1987), petition for review as to other matters filed sub nom. Department of Defense Dependents Schools v. FLRA, No. 87-1735 (D.C. Cir. Nov. 30, 1987), aff'd mem. as to other matters sub nom. Overseas Education Association, Inc. v. FLRA, No. 87-1576 (D.C. Cir. Aug. 31, 1988), in which the Authority reiterated that when management finds that two or more employees are equally qualified for an assignment, the procedure by which one of the employees will be selected is negotiable under section 7106(b)(2).
The Union asserts that because a "reassignment" is involved, section 7106(a)(2)(B), rather than 7106(a)(2)(A), is involved. However, the Union does not state which right under section 7106(a)(2)(B) is implicated, and the Agency does not rely on section 7106(a)(2)(B). In view of our conclusion that the right to assign employees under section 7106(a)(2)(A) encompasses "reassignments," it is unnecessary to further address the Union's contention that 7106(a)(2)(B) is relevant to the proposal.
Because the proposal directly interferes with the exercise of management's right to assign employees, it does not constitute a procedure which is negotiable under section 7106(b)(2). See, for example, American Federation of Government Employees, AFL-CIO, Local 1923 v. FLRA, 819 F.2d 306 (D.C. Cir. 1987) aff'g American Federation of Government Employees, Local 1923, AFL-CIO and Department of Health and Human Services, Office of the Secretary, Headquarters, Office of the General Counsel, Social Security Division, 21 FLRA 178 (1986).
In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986), we articulated the responsibilities of the parties when section 7106(b)(3) is raised. Although the Union asserts in this case that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3), it does not provide the necessary support for its contention. For example, the Union provides no information as to the nature and extent of the adverse effect which it perceives that the reassignment to EPSED will have on the employees involved. Consequently, we find no basis in the record for concluding that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3). The parties bear the burden of creating a record upon which the Authority can make a decision. See National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982) aff'g National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to bear this burden acts at its peril.
Provisions requiring management to exercise its statutory rights under section 7106 in compliance with law are within the duty to bargain. See, for e