35:0265(32)NG - - AFGE Local 987 and Air Force, Warner Robins Air Force Logistics Center, Robins AFB, GA - - 1990 FLRAdec NG - - v35 p265
[ v35 p265 ]
The decision of the Authority follows:
35 FLRA No. 32
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
WARNER ROBINS AIR FORCE LOGISTICS CENTER
ROBINS AIR FORCE BASE, GEORGIA
DECISION AND ORDER ON NEGOTIABILITY ISSUES
March 28, 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)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of three proposals which require the Agency to make reassignments based on volunteers or, in the event that there is an insufficient number of volunteers, inverse order of seniority. A section of one of the proposals also permits employees who are involuntarily reassigned to transfer back to their previous positions after 120 days. The Agency filed a Statement of Position in support of its contention that the proposals are nonnegotiable. The Union did not file a Response to the Agency's Statement of Position, although the Authority granted the Union's request for an extension of time to file a response. For the reasons which follow, we find that the proposals are nonnegotiable because they interfere with management's rights to assign employees and assign work under section 7106(a)(2)(A) of the Statute.
The Warner Robins Air Force Logistics Center, Directorate of Maintenance, employs 7,000 employees in 6 divisions. This case involves three proposals submitted in response to three "planned reassignments/reorganizations within the Aircraft, Industrial Products, and Electronics Divisions," as described below. Agency Statement of Position at 2.
First, to accommodate "a decrease in workload in the Electronics Division and an increase in workload in the Aircraft Division," management "proposed the reassignment of 47 employees from the Production Branch of the Electronics Division (MAI) to the Production Branch of the Aircraft Division (MAB)." Id. The reassignment involved relocation to a new building, new position descriptions and different work, performance standards and supervisors. Id. According to the Agency, the selections of employees for these positions were based on "qualifications, the need for services in the gaining/losing organizations, and other standard managerial considerations." Id.
Second, to shift "only the responsibility for the work" from the Aircraft Division to the Industrial Products Division, management proposed the reassignment of approximately 80 employees from the Production Branch of the Aircraft Division to the Production Branch of the Industrial Products Division. There was no physical move and there were "no significant changes in the employees' duties and responsibilities, supervisors, etc." Id. at 3. [Emphasis in original.]
Third, "to more efficiently organize the workload to enhance the utilization of some 66 employees," management proposed reorganization of the Scheduling Branch in the Aircraft Division. Id. at 2. "The employees did not physically move nor was there any change in duty, hours, title, grade, or series, etc. The only significant change was in supervisory assignments and the flow of the workload." Id.
MAI PERSONNEL FILLING MAB AIRCRAFT ELECTRICIAN POSITIONS
With respect to the MAI employees that are to fill the Aircraft Electrician slots in MAB, it is agreed that the positions will first be offered to volunteers. In the event that there are more volunteers than slots available in MAB, the volunteers with the most seniority (SCD) Service Computation Date, will be permitted the slots. In the event that there are insufficient volunteers to fill the MAB slots, the MAI employees with the least seniority (SCD) will fill the slots.
F-15 WING MOD REORGANIZATION
(1) The first order of staffing will be volunteers from among the employees assigned to MABPCE.
(2) If sufficient volunteers are not achieved after the first order of volunteers, the employees will be permitted to volunteer from other sections within the MAB Division as long as they possess the desired grades and skills.
(3) If, after the first and second order of volunteers are solicited and sufficient volunteers are not obtained, the remainder of the F-15 Wing Mod will be staffed by draftees with the lowest service computation date within the MAB Division who possess the desired grades and skills.
(4) After 120 days a drafted employee will be permitted a lateral transfer back to the MAB Division.
It is agreed by the parties that the staffing of both Material Support Unit (MSU) and Production Support Unit (PSU) will be done in the following manner:
(1) Solicit Volunteers from all the employees involved.
(2) If more volunteers are obtained than actual available positions, the volunteers will fill the slots in order of seniority.
(3) If not enough volunteers are obtained the positions will be filled by drafting in inverse order of seniority until all required positions are filled.
It is further agreed that staffing of multiple shifts will be staffed IAW Article 1 of the Local Supplement to the MLA and overtime assignments will be filled IAW Article 5 of the Local Supplement to the MLA.
IV. Positions of the Parties
The Union states that the intent of the proposals is to apply the procedures established in the parties' master labor agreement governing the assignment to overtime, details, loans and temporary duty (TDY) to the reassignments and reorganization proposed by the Agency. Union's Petition for Review at 4. The Union claims that it "has no interest in determining the qualifications; whether or not the [Agency] uses competitive procedures; which positions to fill, if any; the numbers, grades or types; or any other management right provided by 5 U.S.C. § 7106." Id. The Union further argues that the proposals are consistent with law and regulation because they would apply within the context of the parties' master labor agreement and local supplemental agreement, which require compliance with all applicable laws and regulations. Id. The Union further argues that if the proposals are found to interfere with management's rights, they constitute appropriate arrangements, and/or negotiable procedures for employees affected by the exercise of those rights. Id.
The Agency argues as a threshold matter that the Union has not properly raised an issue as to whether the proposals constitute appropriate arrangements for adversely affected employees under section 7106(b)(3). The Agency asserts that the Union has not shown that: (1) any of the proposals were intended to constitute appropriate arrangements for employees adversely affected by management's actions; (2) the reassignments will have an adverse impact on employees; or (3) the proposals are intended to alleviate any adverse impact on reassigned employees. The Agency also asserts that the Union did not identify which management rights produce the claimed adverse effects. Agency Statement of Position at 3-5. The Agency argues, therefore, that the Authority may not rule on the negotiability of the proposals under section 7106(b)(3). Agency Statement of Position at 4.
The Agency argues that the proposals are nonnegotiable because they conflict with management's rights to assign employees and to assign work. It asserts that the proposals interfere with the Agency's right to determine: (1) which employee will be assigned; (2) the skills and qualifications needed for the position; and (3) whether employees possess the necessary skills and qualifications. The Agency argues that Proposal 2 also interferes with management's right to assign work because it interferes with management's right to determine the duration of the assignment. Agency Statement of Position at 9-10. Lastly, the Agency argues that Proposal 3 concerns the duties the "[A]gency will assign to an employee and under whose supervision the employees will work, matters within the province of the Agency." Agency Statement of Position at 11.
V. Analysis and Conclusions
The right to assign employees under section 7106(a)(2)(A) encompasses the right to make assignments of employees to positions. For example, American Federation of Government Employees, AFL-CIO, Local 738 and Department of the Army, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, 33 FLRA 380 (1988) (Combined Arms Center); and Fort Knox Teachers Association and Fort Knox Dependent Schools, 25 FLRA 1119 (1987) (Fort Knox Dependent Schools), reversed as to other matters sub nom. Fort Knox Dependent Schools v. FLRA, 875 F.2d 1179 (6th Cir. 1989), petition for cert. filed, 58 U.S.L.W. 3353 (U.S. Nov. 7, 1989) (No. 89-736). This right includes: (1) making reassignments as well as "initial" assignments; (2) determining the particular qualifications and skills needed to perform the work of the position, including such job-related individual characteristics as judgment and reliability; and (3) determining whether employees meet those qualifications. Id.
In Combined Arms Center, the Authority held that a proposal which required the agency to reassign either a volunteer or the least senior employee from among those in positions affected by a realignment of an engineering technician position from one division to another was nonnegotiable. The Authority found that the proposal directly interfered with management's right to assign employees because it did "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 [the gaining division]." 33 FLRA at 382. See also, Naval Air Rework Facility, Jacksonville, Florida and National Association of Government Inspectors and Quality Assurance Personnel, 27 FLRA 318 (1987) (arbitration award could not properly enforce a collective bargaining agreement so as to deny an agency the authority to assign employees to different shifts for cross-training purposes).
In some circumstances, there is a duty to bargain over the procedure for determining which one of two or more employees who perform the same work will be selected for an assignment or reassignment. Such a procedure is negotiable only to the extent that it applies "when management finds that two or more employees are equally qualified for an assignment." [Emphasis in original.] Combined Arms Center, 33 FLRA at 383 citing Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 793 (1987) (proposal to use seniority as a tie breaker where two or more employees are equally qualified and capable of performing held negotiable), aff'd mem. as to other matters sub nom. Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988).
For example, where management establishes more than one shift during which the same work is performed and the employees have the required qualifications and skills to perform the duties, a proposal concerning which employees will be assigned to various shifts is negotiable. Laborers' International Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686, 687 (1984) (proposal to offer vacancies on Monday through Friday shift to most senior "otherwise qualified" employees on irregular shifts held negotiable). Similarly, where management determines that it is necessary for some employees to perform the duties of their positions at a different location, and that the employees management determines have the required qualifications and skills, a proposal concerning which of those employees who are assigned to the positions will do the work does not conflict with an agency's right to assign employees. National Treasury Employees Union and Internal Revenue Service, 28 FLRA 40, 43 (1987) (proposal to assign certain home office rather than field-located work to union officials held negotiable); American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA 83 (1981) (proposal to assign temporary duty in a different geographical area based on seniority held negotiable).
In the present case, Proposals 1, 2, and 3 require the Agency to reassign volunteers or, if there are too many or not enough volunteers, to use seniority as the criterion for reassignment. Management has not determined that the employees involved are equally qualified for the assignments as discussed above. To the contrary, the Agency asserts that the proposals require it to reassign the employees "without regard for the skills and qualifications needed to do the work as well as such job related characteristics as judgment and reliability." Agency Statement of Position at 8-9.
By requiring volunteers or seniority to be determinative of which employees will be reassigned, Proposals 1, 2, and 3 prevent the Agency from exercising its judgment concerning the qualifications of the reassigned employees to perform the work of the new positions. Therefore, we find that Proposals 1, 2, and 3 directly interfere with the Agency's right to assign employees by preventing the Agency from assigning only employees whom it determines possess the qualifications and skills needed for the "planned reassignment/reorganizations within the Aircraft, Industrial Products, and Electronic Divisions." Agency Statement of Position at 2. See, for example, Combined Arms Center; and Fort Knox Dependent Schools.
The wording in Proposal 2, which restricts employees who volunteer to those who possess "the desired grades and skills," does not render the proposal negotiable. By requiring the Agency to reassign volunteers from other sections within the MAB Division who possess "the desired grades and skills," the proposal precludes the Agency from taking into consideration the particular needs of the various sections and divisions within the Agency. Proposals which have the effect of forcing an agency to reassign employees to certain positions irrespective of organizational or mission requirements directly interfere with management's right to assign employees under the Statute and are outside the duty to bargain. See, for example, International Brotherhood of Electrical Workers, Local 2080 and Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA 347, 357 (1988) (Provisions 3 and 4, which required management to fill vacancies with internal candidates from organizational units or classifications having a surplus of employees, directly interfered with management's right to assign employees); and American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 32 FLRA 210, 217 (1988) (Proposal 11, which required the agency to assign either all or none of several particular employees to certain positions, directly interfered with management's right to assign employees under the Statute).
In addition, Section 4 of Proposal 2 interferes with management's rights to assign employees and assign work because it prevents the Agency from determining the duration of assignments. Deciding when an assignment begins and ends is inherent in the right to assign employees under section 7106(a)(2)(A). See American Federation of Government Employees, AFL-CIO, Local 916 and Tinker Air Force Base, Oklahoma, 7 FLRA 292 (1981) (Provision II, restricting certain details to 60 days, found nonnegotiable). See also, Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard, 31 FLRA 131, 139-40 (1988) (provision restricting agency's ability to assign an employee to a detail for more than 90 days in a calendar year held nonnegotiable). Section 4 of Proposal 2 permits employees to transfer back to their former position after 120 days. This section prevents the Agency from determining the duration of a particular assignment and, thereby, directly interferes with management's rights to assign employees and assign work.
We reject, however, the Agency's argument that Proposal 3 also interferes with management's right to assign work because it concerns the supervision of bargaining unit employees. Proposal 3 concerns the reassignment of employees to another organizational division. The proposal does not concern either the assignment of supervisors, or the assignment of bargaining unit employees to particular supervisors.
Because Proposals 1, 2, and 3 directly interfere with management's right to assign employees, they do not constitute procedures which are negotiable under section 7106(b)(2). See, for example, Combined Arms Center; and 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).
The Union's claim that the proposals are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute is rejected because there is no basis in the record to support such a conclusion. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). The Union asserts without explanation in its Petition for Review that the proposals are appropriate arrangements under section 7106(b)(3). The Union did not file a Response setting forth support for its claim, although, upon request, it was granted an extension of time to do so. The record does not provide any information as to, for example, the nature and extent of the adverse effect that the Union perceives the reassignments will have on the employees involved. Consequently, we find no basis in the record for concluding that the proposal is an arrangement for adversely affected employees under section 7106(b)(3).
The parties bear the burden of creating a record upon which we 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, Fl