34:0809(137)NG - - NFFE Local 738 and Army, HQ, USA Medical Department Activity, Fort Leonard Wood, MO - - 1990 FLRAdec NG - - v34 p809

[ v34 p809 ]
The decision of the Authority follows:

34 FLRA No. 137











February 13, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority based upon a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of one proposal submitted by the National Federation of Federal Employees, Local 738 (the Union). The proposal was submitted in response to the Union's notification by the Department of the Army, Headquarters, USA Medical Department Activity, Fort Leonard Wood, Missouri (the Agency) that Department of Defense (DOD) regulations require Emergency Medical Technicians (EMTs) to be certified by the National Registry of Emergency Medical Technicians (NREMT).

The proposal is that registration with the NREMT be voluntary. The Agency asserts that the proposal is nonnegotiable because it conflicts with management's rights to remove employees, assign work to employees, select employees, and determine the numbers, types and grades of employees or positions assigned to an organizational subdivision, work project or tour of duty. The Agency also contends that the proposal conflicts with a Government-wide rule or regulation and a DOD regulation for which a compelling need exists.

For the reasons which follow, we find that the proposal is nonnegotiable because it excessively interferes with management's rights to assign employees and to assign work.

II. The Proposal

Registration [with the NREMT] be on a voluntary basis.

III. Positions of the Parties

A. The Agency's Position

The Agency states that DOD and the Agency require that EMT's be certified by the NREMT in response to Department of Transportation (DOT) regulations found at 23 C.F.R. Parts 1204 ("Uniform Guidelines for State Highway Safety Programs") and 1230 ("Highway Safety Program Standards--Applicability to Federally Administered Areas"). The Agency asserts that the DOT regulations require it to adopt a uniform policy on licensing or certification of EMT's. DOD Directive 6000.10, dated September 18, 1986, requires that EMT's become certified by NREMT within 3 years of the date of the Directive's issuance.

The Agency contends that by adopting "a nationally recognized uniform standard of expertise" the Agency is assured that its EMT's "are well within the varying standards which are set by the states." Agency Statement of Position at 2. The Agency argues that the uniformity afforded by the requirement for NREMT certification facilitates the Agency's ability to transfer and reassign EMT's across state lines. Id.

The Agency contends that because the proposal prevents it from applying a uniform licensing requirement, the proposal conflicts with: (1) 23 C.F.R. Parts 1204 and 1230, which are Government-wide regulations within the meaning of section 7117 of the Statute; and (2) DOD Directive 6000.10, for which there is a compelling need under section 2424.11(a) and (c) of the Authority's regulations.

The Agency also contends that DOD has made NREMT certification a required qualification for employees who are assigned to EMT positions. Because the proposal prevents the Agency from removing unqualified employees--those who do not voluntarily seek NREMT certification--the Agency argues that the proposal interferes with its right to remove employees. The Agency contends that it would be required to hire an NREMT-certified EMT for every EMT that it was forced to retain who was not certified by NREMT. It asserts that the proposal, as a consequence, is inconsistent with its right to determine the numbers and types of employees assigned to the relevant organizational subdivisions.

The Agency argues that because it cannot assign EMT duties to an employee who is not certified by NREMT, the proposal interferes with its ability to determine to whom, and when, it will assign work and, consequently, the right to assign work. Additionally, the Agency contends that the proposal interferes with its right to select employees by preventing the Agency from determining the qualifications required for the EMT position.

The Agency argues that the Union's proposal does not constitute a negotiable procedure because it directly interferes with management's reserved rights.

B. The Union's Position

The Union argues that the proposal does not conflict with DOT regulations and that there is no compelling need for DOD Directive 6000.10.

The Union states that the EMT's employed by the Agency are currently certified by the State of Missouri, Bureau of Emergency Medical Services (BEMS)--a certification "recognized statewide and by the DOT." Union Petition at 1. The Union states that its proposal is intended to apply only to incumbents of EMT positions who are certified, not to applicants for vacancies or current employees seeking promotions. Union Response at 2.

The Union denies that the proposal would interfere with the management rights specified by the Agency. The Union contends that the proposal provides a procedure by which employees will be certified and that the proposal does not eliminate the requirement that employees be fully qualified in accordance with the Office of Personnel Management's (OPM) X-118 Qualifications Standards. Moreover, the Union contends that OPM, not the Agency, determines the qualifications of positions. Union Response at 5.

The Union asserts in the alternative that if the proposal interferes with management rights, it is negotiable under section 7106(b)(3) as an appropriate arrangement for adversely affected employees. The Union argues that the adverse impact of the Agency's decision to require NREMT certification on employees "is tremendous." Union Response at 6-7. The Union contends that employees would be required to obtain certification in less than 1 year in circumstances where the examinations involved are normally given only once a year and often two to four attempts are required before an applicant passes the examination. Id. at 7. The Union contends that the Agency's requirement could result in an employee's reassignment or removal. Id. The Union further asserts that the Agency's requirement for NREMT certification places the Agency at a disadvantage in recruiting and retaining employees and that, therefore, the NREMT requirement could be detrimental to efficient operation of the Agency. Union Response at 3, 4, and 7.

The Union denies that the proposal prevents the Agency from implementing the NREMT requirement. Because the proposal only "grandfathers" current employees in their current position, the Union contends that the Agency could implement the NREMT requirement over time as a result of attrition. Union Response at 7-8.

IV. Analysis and Conclusions

Under section 7106 of the Statute, agencies retain the right to determine the requirements of the work of a position, the qualifications and skills needed to do the work as well as job-related individual characteristics. This right is encompassed in the rights to assign employees and work under section 7106(a)(2)(A) and 7106(a)(2)(B). See, for example, Fort Knox Teachers Association and Fort Knox Dependent Schools, 25 FLRA 1119, 1121 (1987), reversed as to other matters sub nom. Fort Knox Dependent Schools v. FLRA, 875 F.2d 1179 (6th Cir. l989), petition for cert. filed, 58 U.S.L.W. 3353 (U.S. Nov. 7, 1989) (No. 89-736). Under section 7106, an agency's right to determine personnel requirements is not limited to qualifications specifically set forth in OPM's X-118 Qualifications Standards. See American Federation of Government Employees, Local 2663 and Veterans Administration Medical Center, Kansas City, Missouri, 31 FLRA 988 (1988) (the rights to assign employees and to assign work include the right to determine whether employees who come into contact with disturbed patients will be required to complete specific training as a condition of their assignments). A proposal which directly interferes with an agency's right to determine the personnel requirements of the work of a position is not within the duty to bargain unless it is determined to be an "appropriate arrangement" within the meaning of section 7106(b)(3). See, for example, VA Medical Center, Kansas City, 31 FLRA 988.

The Agency determined that a personnel requirement for EMT positions is certification by NREMT. According to the Agency, certification of EMT's by a national organization, rather than by the individual states, best meets the Agency's operational needs. We conclude that the Agency's requirement that EMT's be certified by NREMT constitutes a determination of a personnel requirement or qualification for an EMT position. The proposal allows employees to become certified by NREMT "on a voluntary basis." Because the proposal would prevent the Agency from implementing the qualification requirement, the proposal directly interferes with the Agency's rights under section 7106 to assign employees and to assign work. See Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734 (1987) (Proposal 53, permitting certain teachers to be recertified without meeting a management-initiated change in qualifications was nonnegotiable), aff'd as to other matters sub nom. Overseas Education Association Inc. v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988).

Having found that the proposal directly interferes with the Agency's right to determine the personnel requirements of the EMT position, the proposal is nonnegotiable unless it is an appropriate arrangement under section 7106(b)(3). Therefore, we turn to the Union's contention that the proposal is an appropriate arrangement.

In assessing claims that a proposal is negotiable under section 7106(b)(3), the Authority first determines whether a proposal is intended to be an "arrangement" for employees adversely affected by management's exercise of a reserved right. Once the proposal is determined to be an "arrangement," the Authority determines whether the proposed arrangement is appropriate or whether it is inappropriate because it excessively interferes with management's rights. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986).

The Union asserts that: (1) achieving NREMT certification usually entails two to four attempts to pass the examination; (2) because examinations are given infrequently, it is difficult for employees to meet the time frame which the Agency has established for acquiring NREMT certification; and (3) the proposal is intended to forestall the adverse effects which would result for an employee who failed to obtain NREMT certification within the designated time limits. Based on the foregoing assertions, which are not controverted, we conclude that the proposal constitutes an "arrangement" within the meaning of section 7106(b)(3).

According to the Union, employees risk reassignment to another career field or separation from their employment if they do not obtain NREMT certification. Clearly, such consequences could have a significant negative impact on employees. The Union contends that these consequences are not within an employee's control. Union Response at 7. Some of the factors which determine when an employee obtains NREMT certification, such as the scheduling of examinations and deadlines for application, are not within an employee's control. Other factors, however, are within the employee's control. For example, whether an employee passes the examinations on the first try depends largely on the employee's own knowledge, skills, abilities and preparation.

The Agency's decision to require NREMT certification was based on its judgment of what certification requirements would best meet its operational needs. The proposal would negate the Agency's ability to establish NREMT certification as a requirement or qualification for the employees to whom the proposal applies. We conclude that, on balance, the proposal's effect on management's rights to determine the type of certification or qualification necessary for the EMT position outweighs the benefit of allowing employees to comply with a qualification requirement on a voluntary basis. Consequently, we find that the proposal excessively interfe