34:1078(167)NG - - AFGE, Education Council of AFGE Locals and Education - - 1990 FLRAdec NG - - v34 p1078



[ v34 p1078 ]
34:1078(167)NG
The decision of the Authority follows:


34 FLRA No. 167

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

DEPARTMENT OF EDUCATION COUNCIL OF AFGE LOCALS

(Union)

and

DEPARTMENT OF EDUCATION

(Agency)

0-NG-1591

DECISION

February 27, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of four proposals.(1)

Proposal 1 addresses the effective date of an employee's revocation of a dues allotment. Proposals 2, 3 and 5 address requirements and procedures relating to career-ladder promotions.

We find as follows. Proposal 1 does not conflict with section 7115 of the Statute and is negotiable. The first disputed sentence of Proposal 2 is nonnegotiable because it conflicts with management's right to assign work under section 7106(a)(2)(B). The second disputed sentence of Proposal 2 does not conflict with management rights and is negotiable. Proposal 3 is nonnegotiable because it conflicts with a Government-wide regulation--5 C.F.R. § 335.104. Proposal 5 incorporates the provisions of Proposal 3 and is nonnegotiable for the same reason.

II. Proposal 1 (2)

Section 15.06

(a) An allotment may not be revoked for one (1) year after the first deduction.

(b) A revocation shall be effective as of the first full pay period after the anniversary of the first deduction. To revoke an allotment, the employee shall submit an SF-1188 ("Revocation of Voluntary Authorization for Allotment of Compensation for Payment of Employee Organization Due[s]") to the Labor Relations Officer during the thirty (30) day period beginning forty-five (45) calendar days before the anniversary date and closing fifteen (15) calendar days before that anniversary date.

(c) If the employee does not submit the SF-1188 during that thirty (30) day period, his/her withholding allotment may not be revoked until the next anniversary date.

(d) The Labor Relations Officer shall notify the Union of the revocations submitted by its members no later than five (5) work days after receipt of the revocation.

A. Positions of the Parties

The Agency asserts that Proposal 1 conflicts with section 7115 of the Statute because under the proposal the 1-year period for revocation of a dues allotment is calculated from the date on which dues deduction begins. The Agency claims that section 7115 requires the 1-year period to be calculated from the date of the initial authorization to deduct dues. The Agency contends that this proposal is contrary to law and, therefore, nonnegotiable. The Agency cites the Authority's Interpretation and Guidance, 1 FLRA 183 (1979), as support for its position.

The Union states that Proposal 1 is intended to implement the 1-year period provided for in section 7115(a) of the Statute. The Union asserts that there is usually a gap of two or three pay periods between the date the Agency receives employee's authorization of dues deduction and the date on which the deduction begins. The Union argues that under the proposal, the periods during which dues would be deducted from an employee's pay would not exceed 1 year and that the proposal is consistent with section 7115.

B. Analysis and Conclusions

Executive Order 11491, as amended, required that employees be allowed to revoke their authorization of dues allotment to labor organizations at 6-month intervals. Section 7115(a) of the Statute changed the requirement relating to revocation of authorized dues allotments to intervals of 1 year. Section 7115(a) provides:

§ 7115. Allotments to representatives

(a) If an agency has received from an employee in an appropriate unit a written assignment which authorizes the agency to deduct from the pay of the employee amounts for the payment of regular and periodic dues to the exclusive representative of the unit, the agency shall honor the assignment and make an appropriate allotment pursuant to the assignment. Any such allotment shall be made at no cost to the exclusive representative or the employee. Except as provided under subsection (b) of this section, any such assignment may not be revoked for a period of 1 year.

In Interpretation and Guidance, 1 FLRA 183, the Authority addressed the revocation of dues assignments which were in effect on January 11, 1979, the date the Statute went into effect, where a request for revocation was submitted after that date. The Authority held that, although parties could agree to continue an existing contractual provision which allowed for revocation of dues allotments at 6-month intervals, the 1-year interval requirement of section 7115(a) must be implemented if either party objected to continuation of the existing contractual provision. The Authority stated that in converting to the new requirement, the yearly interval should be computed based on the later of two dates: (1) the ending date of the preceding 6-month interval during which the employee could have revoked his or her dues authorization, or (2) the date on which the employee authorized dues withholding. Id. at 188-89.

Subsequent to its Interpretation and Guidance, the Authority held that parties may define the yearly intervals required by section 7115 through negotiations. See, for example, American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1029 (1988), reversed as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, Nos. 88-7408/7470 (9th Cir. Feb. 7, 1989). The Authority's holding in Interpretation and Guidance that the 1-year interval in section 7115 must be measured from the date on which an employee authorizes dues withholding is inconsistent with the Authority's later holdings that parties may define the 1-year interval through negotiation. For the following reasons, we find that section 7115 does not require the 1-year period to be measured from the date of the employee's authorization.

Section 7115(a) provides only that authorized dues allotments "may not be revoked for a period of 1 year." See, for example, U.S. Army, U.S. Army Materiel Development and Readiness Command, Warren, Michigan, 7 FLRA 194, 199 (1981). Section 7115(a) is silent as to the event from which the 1-year interval is to be measured. Nothing in section 7115(a) or its legislative history supports the Authority's conclusion in Interpretation and Guidance that the 1-year interval must be measured from the date an employee authorizes dues withholding. Consequently, we conclude that the date from which the 1-year interval in section 7115(a) is measured is negotiable.

We will no longer follow the holding in Interpretation and Guidance that revocations of dues allotments may be effected only on the anniversary of their authorization. Rather, we will follow the Authority's subsequent decisions that establishment of the date on which revocations would be effected is subject to negotiation between the parties.

Of course, proposals regarding the 1-year interval must be consistent with applicable law and regulations and must allow employees to revoke dues withholding at annual intervals. See Naval Weapons Station, Concord, California, 32 FLRA 1023 (1988) (Authority found that Provision 1 was inconsistent with section 7115(a) because it could result in employees being precluded from revoking dues authorizations for periods of almost 2 years).

Proposal 1 bases the effective date of a revocation on the anniversary of the date when the deduction began. It is consistent with the statutory requirement that dues allotments "may not be revoked for a period of 1 year" because employees would have an opportunity to revoke authorizations annually. Based on the foregoing, we find that Proposal 1 is within the duty to bargain.

III. Proposal 2

Section 17.02

The Employer recognizes the importance of providing grade-building experience to employees in a career-ladder who are performing satisfactorily so that they can demonstrate their capability to perform work at the next higher level. Such experience will be provided in a manner to encourage the development of employee potential. If the supervisor cannot provide such experience because of reasons in Section 17.03(c), he/she will inform the employee and will explore opportunities for reassigning the employee. [Only the underlined portion is in dispute.]

A. Positions of the Parties

The Agency contends that the first disputed sentence in Proposal 2 violates management's right to assign work because it would compel the assignment of higher graded work to employees. The Agency asserts that the second disputed sentence violates its rights to determine its organization, assign employees, assign work, and to determine the numbers, types and grades of employees or positions assigned to any organizational subdivision, work project or tour of duty. The Agency argues that Proposal 2 requires the assignment of "grade-building" duties to employees who are performing satisfactorily unless the higher level work is not available in the employee's unit. The Agency argues that the proposal is not within the duty to bargain because it directly and excessively interferes with management rights.

The Union states that Proposal 2 "provides that employees in a career-ladder position will have work that is available assigned to them according to the management- determined purpose of the career-ladder position." Union Response at 4. It states that the proposal does not require reassignment of an employee in the event that work is not available in a unit. The Union claims that the proposal provides only "a mechanism for joint exploration of the 'possibility' of reassignment." Id.

The Union states that Proposal 2 does not establish any requirements for career-ladder positions or promotions but, rather, only repeats existing requirements and principles. The Union contends that one of the requirements for a career-ladder promotion is that the incumbent demonstrate the ability to perform work at the next higher level. Therefore, the Union maintains that career-ladder positions require grade-building experience. The Union contends that Proposal 2 is an "appropriate arrangement whereby the employee enjoys some protection from an arbitrary or negligent failure to assign duties according to the agency's own career-ladder plan." Id. at 4-5. The Union relies on the Authority's decision in American Federation of Government Employees, Local 3258, and U.S. Department of Housing and Urban Development, 21 FLRA 413 (1986).

B. Analysis and Conclusions

1. The First Disputed Sentence

The first disputed sentence requires grade-building "experience" to "be provided in a manner to encourage the development of employee potential." The Union states that this sentence "provides that employees in a career-ladder position will have work that is available assigned to them according to the management-determined purpose of the career-ladder position." Union Response at 4. The Union's statement of intent is consistent with the plain wording of the sentence and we adopt it for the purpose of this decision. Consistent with this statement of intent, we interpret the first disputed sentence as requiring the Agency to assign available grade-building work to employees in career-ladder positions in order to allow the employees to fulfill the requirements for a career-ladder promotion.

The right to assign work under section 7106(a)(2)(B) includes the right to determine the particular duties to be assigned and the particular employees to whom or positions to which the duties will be assigned. For example, National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), affirmed sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). A proposal which obligates management to assign duties, including duties which would enable management to evaluate an employee's ability to perform higher graded duties, violates the right to assign work. See National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 983, 988 (1982).

The first disputed sentence of Proposal 2 requires the Agency to assign "grade-building" work which is available in a unit to employees in career-ladder positions. Therefore, the first disputed sentence directly interferes with the Agency's right to assign work.

The Union's reliance on the Authority's decision in American Federation of Government Employees, Local 3258 and U.S. Department of Housing and Urban Development, 21 FLRA 413 (1986), is misplaced. In that decision, an agency excepted to an arbitrator's award which required the agency to restore "as near as practical, the balance of higher and lower rated duties which the grievant performed [previously]; or in some other way provide him with the same opportunities he then had to demonstrate that he is able to satisfactorily perform at the GS-11 level." Id. at 415. The Authority found that the portion of the arbitrator's award which restricted the assignment of duties to the grievant or directed the agency to restore duties which the grievant had previously performed was contrary to the right to assign work. The Authority modified the award to require only that the grievant be provided "opportunities" to demonstrate his ability to perform work at a GS-11 level. In view of the Authority's rejection of a portion of the award because it required the agency to assign work, we must conclude that under the circumstances of the case the Authority did not construe the requirement to provide "opportunities" as requiring the assignment of work.

2. The Second Disputed Sentence

If there is insufficient higher level work available in a unit for assignment to an employee who is in a career-ladder position, the second disputed sentence of Proposal 2 requires the supervisor to "explore opportunities" for reassigning the employee. The Union states that this sentence does not require the reassignment of an employee. This statement is consistent with the wording of the proposal. Therefore, for purposes of this decision we find that the second disputed sentence does not require a reassignment.

In our view, requiring the Agency to "explore" the possibility of reassignment has the same effect as a proposal requiring the Agency to consider reassigning an employee. That is, in neither instance is the Agency required to take or refrain from taking action or to exercise its management right in a particular manner. Proposals which require an agency only to consider exercising its management rights in a particular manner do not interfere with those rights. For example, National Labor Relations Board Professional Association and General Counsel, National Labor Relations Board, 32 FLRA 557, 563 (1988) (proposal requiring an agency to consider employee requests regarding supervisory assignment does not interfere with the right to assign work). Because we find that the second disputed sentence of Provision 2 does not require that the Agency exercise its management rights in a particular manner, we reject the Agency's contention that the sentence interferes with its management rights.

3. The Union Has Not Provided a Record on Which To Base a Conclusion on the Applicability of Section 7106(b)(3)

Because of our finding that the first disputed sentence directly interferes with management's right to assign work, we must address the Union's statement that Proposal 2 "references the assignment of higher-graded duties only in repetition of the FPM and as an appropriate arrangement whereby the employee enjoys some protection from an arbitrary or negligent failure to assign duties according to the agency's own career-ladder plan." Union Response at 4-5. It is not clear that by use of the term "appropriate arrangement," the Union is contending that Proposal 2 is negotiable under section 7106(b)(3). However, for purposes of this decision we assume that the Union's reference to "appropriate arrangement" is intended as an assertion that Proposal 2 is negotiable under section 7106(b)(3).

The parties are responsible for creating the record upon which we will resolve negotiability disputes. While the Authority is empowered to undertake independent inquiry into relevant law, the parties bear the responsibility of making the record to support their claims, and cannot rely on the Authority to do it for them. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982).

In determining whether a proposal is negotiable as an appropriate arrangement under section 7106(b)(3), the Authority depends on information supplied by the parties. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986), the Authority discussed in detail the responsibilities of parties to raise and address specific matters concerning section 7106(b)(3) in negotiability appeals. Among other things, the Authority stated:

In making that determination, the Authority will first examine the record in each case to ascertain as a threshold question whether a proposal is in fact intended to be an arrangement for employees adversely affected by management's exercise of its rights. In order to address this threshold question, the union should identify the management right or rights claimed to produce the alleged adverse effects, the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse. In other words, a union must articulate how employees will be detrimentally affected by management's actions and how the matter proposed for bargaining is intended to address or compensate for the actual or anticipated adverse effects of the exercise of the management right or rights.

Id. at 31.

Under the analytical framework set out in Kansas Army National Guard, once the Authority determines whether a proposal constitutes an "arrangement," it then determines whether the "arrangement" is "appropriate." The Authority listed several factors as examples of matters which it would consider in determining whether a proposal constituted an "appropriate" arrangement within the meaning of section 7106(b)(3). The Authority stated that in future cases it would expect parties to "address any and all relevant considerations as specifically as possible." Id. at 31-33.

The Union has not created a record on which we can base a determination of whether Proposal 2 constitutes an appropriate arrangement within the meaning of section 7106(b)(3). The Union merely states that "[t]he proposal references the assignment of higher-graded duties only in repetition of the FPM and as an appropriate arrangement whereby the employee enjoys some protection from an arbitrary or negligent failure to assign duties according to the agency's own career-ladder plan." Union Response at 4-5.

Additionally, although the Union describes Proposal 2 as following "the course set out" in Federal Personnel Manual (FPM) Chapter 335, subchapter 1-4, it is unclear how Proposal 2 reflects that provision of the FPM. FPM 335, subchapter 1-4, establishes requirements for agency merit promotion plans in general. Contrary to the Union's contention, FPM 335, subchapter 1-4, does not describe "the career-ladder promotion process." Union Response at 9-10.

Because the first disputed sentence of Proposal 2 directly interferes with management's right to assign work, the sentence is nonnegotiable absent a finding that it constitutes an appropriate arrangement within the meaning of section 7106(b)(3). The record provides an inadequate basis on which to conclude that the first disputed sentence constitutes an appropriate arrangement. Therefore, it is nonnegotiable.

The second disputed sentence of Proposal 2 does not directly interfere with management rights under section 7106. It is negotiable regardless of whether it constitutes an appropriate arrangement under section 7106(b)(3). See, for example, National Association of Government Employees, Local R3-84, SEIU, AFL-CIO and District of Columbia Air National Guard, 23 FLRA 536, 540-41 (1986).

IV. Proposals 3 and 5

[Proposal 3]

Section 17.03

The Employer shall consider an employee for promotion in his/her career ladder when:

(a) The employee was initially selected through merit procedures, or a valid exception or exclusion to merit procedures;

(b) The employee is performing at a satisfactory level, has demonstrated the ability to perform satisfactorily at the next higher level, and has met the necessary time-in-grade requirements; and

(c) There is enough work in the unit at the next performance level for the employee to be promoted.

[Proposal 5]

Section 17.05

At the time an employee meets and satisfies the requirements under Section 17.03 of this Article, the Employer will make a decision to promote or not to promote.

1. If an employee is meeting the promotion criteria in the career ladder, the Employer will certify the promotion which will be effective at the beginning of the first pay period after the pay period in which the requirements are met.

2. If an employee is not meeting the promotion criteria in the career ladder, he/she will be given written notices which will reflect the tasks which must be successfully performed and skills which must be demonstrated before promotion can be effected.

A. Positions of the Parties

The Agency asserts that because Proposal 5 cross-references Proposal 3, the two proposals must be considered together. The Agency argues that both proposals are nonnegotiable because they conflict with a Government-wide regulation. The Agency contends that Proposal 3, and Proposal 5 by reference, would require that an employee be performing at only "a satisfactory level" to be eligible for a career-ladder promotion. The Agency contends that this requirement is inconsistent with the provisions of 5 C.F.R. § 335.104, which require that to be eligible for a career-ladder promotion an employee must have (1) a current rating of "Fully Successful" (level 3) or higher, and (2) a "Fully Successful" or higher rating on any critical element which is also critical to performance at the next higher level. The Agency contends that Proposals 3 and 5 attempt to redefine the term "Fully Successful." The Agency also asserts that Proposals 3 and 5 directly interfere with management's exercise of its "right to determine the qualifications of an employee for promotion." Agency Brief at 7.

The Union states that Proposal 3 provides for consideration of an employee for promotion when the criteria specified in the proposal are met. The Union contends that the criteria are taken from the FPM and are intended to reflect the existing requirement of 5 C.F.R. § 335.104. The Union states that the term "satisfactory" as used in Proposal 3 is intended in its common usage, not as an "adjectival rating" under the Agency performance plan, which does not have a level designated "satisfactory." Union Response at 13. The Union contends that "satisfactory" is intended to indicate performance at a level which satisfies the Agency's performance criteria for promotion and that using the term "satisfactory" would leave the Agency the flexibility to change descriptions of the required rating level. The Union states that Proposal 5 reflects existing criteria and requirements for promotion and sets a date for the "ministerial act of completing the paperwork" for a career-ladder promotion. Id. at 6.

B. Analysis and Conclusion

The Union asserts that Proposal 3 is intended to reflect the provisions of 5 C.F.R. § 335.104. 5 C.F.R. § 335.104 provides:

§ 335.104 Eligibility for career ladder promotion.

No employee shall receive a career ladder promotion unless his or her current rating of record under Part 430 of this chapter is "Fully Successful" (level 3) or higher. In addition, no employee may receive a career ladder promotion who has a rating below "Fully Successful" on a critical element that is also critical to performance at the next higher grade of the career ladder.

The proposal does not (1) restate or refer to 5 C.F.R. § 335.104, or (2) state that determinations regarding eligibility for promotion shall conform with governing regulations. The plain wording of the proposal requires that an employee's performance be "at a satisfactory level" to be eligible for a career-ladder promotion.

The Union's statement that the proposal reflects the requirements of 5 C.F.R. § 335.104 is inconsistent with the plain wording of the proposal. As noted, the proposal uses different terminology than that used in the regulation and the proposal does not acknowledge either the existence or controlling significance of the regulation. The Union should have drafted the proposal to indicate that it is intended to apply in a manner consistent with 5 C.F.R. § 335.104. See Overseas Education Association, Inc. v. FLRA, 827 F.2d 814, 821 (D.C. Cir. 1987) in which the court stated that, "[I]t is for the Union, not the FLRA, to draft proposals that come fully within the Employer's duty to negotiate."

5 C.F.R. § 335.104 is a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. American Federation of State, County and Municipal Employees, Local 2830, AFL-CIO and Department of Justice, 21 FLRA 1039, 1044-45 (1986). Proposal 3 is inconsistent with this Government-wide regulation. Consequently, Proposal 3 is not within the duty to bargain.

Proposal 5 requires the Agency to promote employees when the requirements set forth in Proposal 3 are met. One of the requirements set forth in Proposal 3--that an employee be considered eligible for a career-ladder promotion based on performance at "a satisfactory level"--conflicts with a Government-wide regulation. Because Proposal 5 would require a career-ladder promotion based on performance at "a satisfactory level," we find that it conflicts with 5 C.F.R. § 335.104 based on the reasons which we expressed in our discussion of Proposal 3. Therefore, Proposal 5