36:0466(57)NG - - HHS, SSA, Northeastern Program Service Center and AFGE, National Council of SSA Payment Center Locals, Local 1760 - - 1990 FLRAdec NG - - v36 p466



[ v36 p466 ]
36:0466(57)NG
The decision of the Authority follows:


36 FLRA No. 57

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

NORTHEASTERN PROGRAM SERVICE CENTER

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL COUNCIL OF SOCIAL SECURITY ADMINISTRATION

PAYMENT CENTER LOCALS

LOCAL 1760

(Union)

0-NG-1684

DECISION AND ORDER ON NEGOTIABILITY ISSUES

July 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). The negotiability of one proposal is at issue.

The proposal requires the Agency to continue, without modification, its practice of permitting employees to use a particular form when they apply for vacancies. We find that the proposal constitutes a procedure that the Agency will follow in exercising its right, under section 7106(a)(2)(C) of the Statute, in filling positions, to select from among properly ranked and certified candidates for promotion or from any other appropriate source. Consequently, we conclude that the proposal is negotiable under section 7106(b)(2) of the Statute.

II. Background

The dispute in this case arose during mid-term bargaining. The Agency determined that it would no longer assign to its promotion committee the task of reviewing the personnel files of employee applicants for announced vacancies. Rather, the Agency decided that it would require employees to provide the information by completing a new application form. Thereafter, the Agency changed the application form that had been used previously and notified the Union of the change.

In subsequent negotiations, the Union requested the assistance of the Federal Service Impasses Panel (Panel). After considering the parties' positions, the Panel instructed the Union to withdraw a proposal providing for the Union's right to review applications for accuracy before they are considered by the promotion committee and to submit an amended proposal. The Union submitted additional proposals and the parties reached agreement on all matters except the proposal in dispute in this case and the proposal concerning Union review of applications for accuracy. See Union's Response at 1. The Union requested an allegation of nonnegotiability from the Agency on three different occasions concerning the proposal in this case and the Agency responded, declaring that it had no duty to bargain on the proposal.

III. Procedural Issue

The Agency contends that the Union's petition for review must be dismissed because it does not contain an allegation of nonnegotiability as required under section 2424.1 of the Authority's Rules and Regulations. The Agency asserts that it did not, at any time during the parties' negotiations, allege that the proposal was inconsistent with any law, rule or regulation. Rather, the Agency states that its "expressed position of record was that the subject proposal was inconsistent with the parties' master agreement." Agency's Statement of Position at 4.

The Agency further asserts that, although it did state, in response to two of the Union's requests for an allegation, that "it had no duty to bargain on the subject proposal," this response "neither stated nor implied that the proposal was nonnegotiable by virtue of its being inconsistent with law, rule or regulation." Agency's Statement of Position at 4-5. Therefore, the Agency argues that the Union's petition fails to establish the conditions necessary for review of the Union's appeal.

The Union requests that the Authority accept jurisdiction and determine the negotiability of the proposal "in the interest of conserving the limited funds, resources and time of the parties." Union's Response at 5. The Union also notes that the Agency, in its Statement of Position, "for the first time" argues that the proposal is inconsistent with law, rule or regulation. Id. at 3.

In American Federation of Government Employees, AFL-CIO, National Council of Field Labor Locals, Local 3181 and U.S. Department of Labor, Mine Safety and Health Administration, 32 FLRA 1214, 1219 (1988), the Authority rejected the union's contention that the agency's refusal to declare a proposal either negotiable or nonnegotiable, pursuant to a written request for an allegation of nonnegotiability, constituted a constructive allegation of nonnegotiability. The agency's response in that case merely stated that it did not have a duty to bargain on the proposal because of a prior settlement agreement between the parties. The agency did not state that the proposals were nonnegotiable under law, rule or regulation. The Authority concluded, therefore, that the record in that case did not support the union's argument.

In contrast, in this case the Agency submitted a response to the petition for review in which it does argue that the Union's proposal is inconsistent with law, rule or regulation. Therefore, the record in this case demonstrates that the Agency has taken the position that the Union's proposal is nonnegotiable because it is inconsistent with law, rule or regulation.

Accordingly, in the circumstances of this case, we find that the Union's petition for review is properly before us. See, for example, American Federation of Government Employees, AFL-CIO, Local 3028 and Department of Health and Human Services, Alaska Area Native Health Service, 13 FLRA 697 (1984). We will, therefore, consider the negotiability of the disputed proposal.

IV. Proposal

The current practice whereby employees applying for vacancies within the Northeastern Program Service Center use a PB-506 Form will be continued without modification.

A. Positions of the Parties

1. The Agency

The Agency argues that the proposal violates its rights to assign work and to determine the methods and means of performing work under section 7106(a)(2)(B) and (b)(1) of the Statute.

The Agency asserts that the new form (Form 45) is necessary in the performance of the work of its promotion committee--the rating and ranking of applicants--and that its decision to remove tasks from the promotion committee constituted an exercise of management's right to assign work. Agency's Statement of Position at 7. According to the Agency, by requiring the Agency to use a particular form, the proposal violates its right to determine the methods and means of performing work because there is an "integral relationship" between management's use of a particular form and management's choice of the methods and means it will use to perform its work. Id. In support of its position, the Agency cites the Authority's decision in American Federation of Government Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 31 FLRA 45 (1988) (Tooele Army Depot).

The Agency also contends that the Authority's decision in 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, 181-84 (1986) (Proposals 2 and 3) (Office of the General Counsel, Social Security Division), finding that proposals requiring the use of a negotiated performance evaluation form are negotiable, is not applicable to this case. The Agency asserts that the decision in that case was based on a determination that the information requested in both the original and negotiated forms was the same information. The Agency notes that the old form in this case (PB-506) and the new form (Form 45) are substantially different.

2. The Union

The Union states that the intent of its proposal is "the retention of the method used by employees for many years in applying for promotions within the activity[,]" under which applicants filled out only Form PB-506. Petition for Review at 3. In this connection, the Union notes that the new vacancy application process requires employees to complete two forms (Form 45 and PERS Form 29) instead of a single form. The Union further asserts that the forms are so complex that the Agency issued a 20-page instruction booklet on how to complete them. Id. at 1.

In addition, the Union asserts that the Agency has not identified any specific law, rule or regulation which would bar negotiation on its proposal. According to the Union, the Agency fails to support its arguments that the proposal is inconsistent with its right to assign work or determine the methods and means of performing its work.

The Union argues that the Authority's decision in Office of the General Counsel, Social Security Division is applicable to the issues in this case. The Union notes that consideration of whether the forms involved in that case were "the same" occurred because the issue arose in the context of a determination of compelling need. The Union asserts that no compelling need issue is involved in this case and that "uniformity of a form is not a test of negotiability, except under a compelling need doctrine where it may be factored into the determination process culminating in an Authority holding of negotiability." Union's Response at 4.

The Union contends that the Agency's reliance on the Authority's decision in Tooele Army Depot is misplaced. The Union claims that the proposals in Tooele Army Depot were linked with management's right to determine its internal security practices, whereas in this case the Agency has not demonstrated a link between the proposal and management's exercise of the right to determine its internal security practices. Union's Response at 3.

The Union further contends that the Agency's reliance on Authority precedent concerning the functions of rating and ranking panels is also misplaced because the proposal does not concern "the functions normally attributed to a rating and ranking committee." Union's Response at 3-4.

B. Analysis and Conclusions

We find that the proposal does not directly interfere with management's rights to assign work and select employees under section 7106(a)(2)(B) and (C) of the Statute or with management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. We conclude that the proposal is negotiable under section 7106(b)(2) as a procedure governing the exercise of management's right under section 7106(a)(2)(C).

1. The Proposal Does Not Directly Interfere With Management's Right to Select Under Section 7106(a)(2)(C) of the Statute

The proposal requires the Agency to reinstate its practice of permitting employees who apply for announced vacancies within the Activity to complete a PB-506 application form. Form PB-506 requires employees to provide their names, the title of the job for which they are applying, and a signature. Form 45, which management intends as a replacement for Form PB-506, has been designed as a "stand alone" form that requires employees to provide more detailed information as to their qualifications and experience. The effect of the proposal, therefore, is to preclude management from requiring employees who apply for announced vacancies to use Form 45.

We note at the outset that although the proposal concerns the application process for selection to vacant positions, it does not directly interfere with management's right, under section 7106(a)(2)(C) of the Statute, to select from among properly ranked and certified candidates for promotion or from any other appropriate source.

The right to select includes the right to determine, as an integral aspect of the process of selection, the qualifications needed to fill vacant positions. National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 25 FLRA 1067, 1075-76 (1987), affirmed sub nom. National Treasury Employees Union v. FLRA, 848 F.2d 1273, 1277-78 (D.C. Cir. 1988). The right to determine the qualifications necessary for a position would be meaningless, however, if management were not able to specify the information that it needs in order to assess whether, and to what degree, an employee possesses those qualifications. We conclude, therefore, that management's right to determine the qualifications of a position includes the right to determine the information that it needs to assess those qualifications. Therefore, the issue in this regard is whether the proposal would improperly limit the information concerning qualifications which employees can be required to provide.

The record indicates that when an employee applied for a position by submitting the PB-506 form, management would review the employee's official personnel file (OPF) and determine, based on the information in the OPF, whether the employee met the qualifications for the position. Union's Petition at 1; Agency's Statement at 2, 6-7. An employee's OPF contains, among other things, copies of the employee's applications for Federal employment, for example, a resume and/or Standard Form 171; copies of forms authorizing personnel actions, such as a detail or a promotion; copies of forms documenting awards; and copies of training forms that document formal academic work and additional job related education. See Federal Personnel Manual Supplement 293-31, subchapter S4.

Form 45, the form with which the Agency would replace Form PB-506, requires the employee to provide information as to prior job experience, developmental assignments, education and training. See Enclosure No. 3 attached to the Agency's Statement. In other words, Form 45 requires the employee to provide, on that form alone, the information that would otherwise be contained in the employee's OPF. Because Form 45 would draw together in one place the information contained throughout the OPF, the Agency describes the form as a "'stand alone' source of information." Agency's Statement at 2.

The Agency does not contend, however, that Form 45 requires more or different information than is contained in an employee's OPF. The Agency contends instead that the use of Form 45 is intended to replace the Agency's review of the OPF as the source of information for assessing employee qualifications in the rating and ranking process. There is no basis in this record on which to conclude that the information required by Form 45 differs from the information that is contained in an employee's OPF. We find, therefore, that by precluding the Agency from requiring employees to submit Form 45, the proposal does not limit the Agency's ability to obtain the information necessary to assess an employee's qualifications.

The Agency contends that Form 45 contains different information than Form PB-506. See Agency's Statement at 7-8. However, the issue is not whether the forms contain different information, but whether the use of Form PB-506 instead of Form 45 limits the Agency's ability to obtain the information that it needs to assess the employee's qualifications. We have found that it does not. Moreover, the Agency's reliance on Tooele Army Depot is misplaced. That case did not involve the agency's right to use a particular form. Rather, it concerned the agency's right to require employees, as a condition of their employment in particular positions, to indicate their consent to a drug testing program by signing a consent form.

We conclude, therefore, that the proposal does not interfere with the right to select individuals for appointment to a position under section 7106(a)(2)(C) by limiting management's ability to assess the qualifications of those individuals. Rather, the proposal concerns one of the steps that an employee must take to apply for a position, namely, filing an application form, and is a procedure, under section 7106(b)(2), that management will follow in exercising its right to select an individual for appointment to that position.

2. The Proposal Does Not Directly Interfere With Management's Right to Assign Work Under Section 7106(a)(2)(B) of the Statute

The Agency claims that, by precluding management from requiring employees to file Form 45, the proposal would prevent management from rating and ranking employees based on the information in the form and would necessitate the assignment to other personnel the task of reviewing that same information in employees' OPFs. Because the proposal would require management to assign someone to review the necessary information in employees' OPFs, the Agency claims that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. We disagree.

The proposal specifies only the form that an employee must file to apply for a position. Even assuming that the proposal has the consequence of necessitating review of an employee's OPF, the proposal does not determine who will do the review. Although the Agency indicates that the "promotion committee" has performed the review in the past, the proposal would not require that the Agency continue to assign that task to the committee. The proposal preserves the Agency's right to specify who will perform the review. Moreover, we note that even if the Agency were to use Form 45, the Agency would need to assign someone to review that form.

Proposals establishing a procedure that an agency will follow in exercising its right to select under section 7106(a)(2)(C) will not be found to be nonnegotiable because they require the agency to assign someone to implement the procedure. See National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362, 367-68 (1990) (Naval Plant Representative Office). As we stated in that case:

Section 7106(b) of the Statute provides that "nothing" in section 7106 shall preclude parties from negotiating "procedures which management will observe in exercising any authority" under section 7106. As we have concluded above, this provision constitutes a procedure for the [a]gency to observe in exercising its right to make selections. This procedure, like many procedures, necessitates the assignment of work to fulfill its requirements. To bar the negotiation of procedures that would otherwise be negotiable under section 7106(b)(2) because they entail the assignment of work to agency personnel would nullify section 7106(b)(2) and overlook the explicit purpose and intent of that subsection.

Naval Plant Representative Office, 35 FLRA at 368 (citations omitted).

Because the proposal in this case establishes a procedure that the Agency will follow in exercising its right to select and because the proposal does not impermissibly specify who will implement the procedure, we find, consistent with Naval Plant Representative Office, that the proposal does not directly interfere with management's right to assign work. See also American Federation of Government Employees, Local 2761 and Department of the Army, Army Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006, 1014-16 (1988); National Labor Relations Board Professional Association and General Counsel, National Labor Relations Board, 32 FLRA 557, 564 (1988). Moreover, based on this conclusion, we find that the proposal in this case is distinguishable from the proposals found nonnegotiable in the cases cited by the Agency. The proposals in those cases specified the particular employees to whom, or positions or groups to which, a particular task would be assigned.

3. The Proposal Does Not Directly Interfere With Management's Right to Determine the Methods, Means, and Technology of Performing Work Under Section 7106(b)(1) of the Statute

Relying on the Authority's decision in Tooele Army Depot, the Agency argues that the proposal concerns a matter related to the determination of the methods and means of performing work under section 7106(b)(1) of the Statute. The Agency's reliance on Tooele Army Depot is misplaced. The proposal in that case concerned management's determination of its internal security practices under section 7106(a)(1), not the methods and means of performing work under section 7106(b)(1). The Authority explicitly did not pass on the other grounds alleged by the Agency, including the Agency's "methods" and "means" argument. Tooele Army Depot, 31 FLRA at 56.

The Agency also claims that the decision to use Form 45 "constitutes an exercise of the Agency's right to determine the methods and means by which the work of the committee, [i.e.], the rating and ranking of applicants, is to be accomplished." Agency's Statement at 7. In order to demonstrate whether a proposal directly interferes with management's right to determine the "methods and means of performing work," an agency must show that: (1) there is a direct and integral relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission; and (2) the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. See, for example, Department of Defense, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA 68, 69.

The Agency has made no attempt to demonstrate a direct and integral relationship between the use of Form 45 and the accomplishment of its mission and none is apparent to us. The parties bear the burden of creating a record upon which the Authority can make a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). A party failing to meet its burden acts at its peril. Consequently, we find that the Agency has failed to provide a record to support a conclusion that the use of Form 45 constitutes a determination of the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute. In making this finding, we do not decide whether, in a different case, the use of a particular form could be found to constitute a method or means of performing work under section 7106(b)(1).

Because we find that the Agency has not shown that the proposal concerns the methods and means of performing work, we conclude that the proposal does not directly interfere with management's rights under section 7106(b)(1). See National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 718 (1990).

4. Conclusions

Because we find that the proposal does not directly interfere with management's rights under section 7106(a)(2)(B), (C), and (b)(1), and because we find that the proposal constitutes a procedure, within the meaning of section 7106(b)(2), that management will follow in exercising its rights under section 7106(a)(2)(C), we conclude that the proposal is negotiable.

V. Order

The Agency shall, upon request or as otherwise agreed to by the parties, bargain concerning the Union's proposal.(*)




FOOTNOTES:
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