36:0834(81)NG - - NFFE Local 2096 and Navy, Naval Facilities Engineering Command, Western Division - - 1990 FLRAdec NG - - v36 p834



[ v36 p834 ]
36:0834(81)NG
The decision of the Authority follows:


36 FLRA No. 81

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2096

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVAL FACILITIES ENGINEERING COMMAND

WESTERN DIVISION

(Agency)

0-NG-1664

DECISION AND ORDER ON NEGOTIABILITY ISSUES

August 24, 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 case concerns the negotiability of three provisions of a negotiated agreement which were disapproved by the Department of the Navy under section 7114(c) of the Statute.

Provision 1 requires the Agency to make a diligent effort to provide an employee, returning to duty after an illness or injury, with temporary work consistent with any limitations substantiated by a physician's certification. Provision 2 requires that performance evaluations take into account factors beyond an employee's control which may cause the employee to fall below a specific performance level. Provision 3 prescribes the methods for identifying which employee or employees will be transferred from one field office to another if a reduction in personnel is necessary.

For the following reasons, we find that Provision 1 is negotiable as an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. We find that Provision 2 directly interferes with management's rights, under section 7106(a)(2)(A) and (B), to direct employees and to assign work. We find that Provision 3 is negotiable because it does not directly interfere with the Agency's exercise of its rights, under section 7106(a)(2)(A) and (C), to assign employees and to select candidates for positions from any appropriate source.

II. Provision 1

Article XII. LEAVE AND RELATED ADMINISTRATIVE PROCEDURES. Section 2f. For an employee requesting return to duty from sickness or injury with temporary limitations placed on his performance, as substantiated by a doctor's certificate, the Employer will make a diligent effort to assign the employee to available work within these limitations.

A. Positions of the Parties

The Agency contends that because Provision 1 imposes restrictions on the assignment of work independent of the restrictions prescribed by the Agency's own medical authorities, the provision interferes with its rights to assign employees and work under section 7106(a)(2)(A) and (B) of the Statute. The Agency further argues that Provision 1 is not an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute because it precludes the Agency "from exercising its right to assign work, rather than ameliorating adverse effects flowing from the exercise of that right[.]" Statement of Position at 5.

The Union asserts that Provision 1 is intended "to function as an appropriate arrangement for employees who are facing temporary medical restrictions and who may be adversely affected by the exercise of management's right to assign employees and work under section 7106(a)(2)(A) and (B)." Reply Brief at 1-2. The Union states that the provision is designed to protect those employees' job security and to safeguard them against the danger of further illness or injury. The Union asserts that:

[The provision] simply requires the agency to assign available work to employees within the limitations set by a physician. The agency is not obligated to find work for an employee within the prescribed restrictions. Instead, the agency need only make a reasonable effort to find an assignment, and then only when work is available and the employee is qualified for the job.

Reply Brief at 2 (emphasis in original). The obligation to make a reasonable effort to find appropriate work for the covered employees, the Union argues, is far outweighed by the benefits accruing to the temporarily incapacitated employees who will be protected from additional threats to their health.

B. Analysis and Conclusions

1. The Agency's Right to Assign Employees Under Section 7106(a)(2)(A) of the Statute

In support of its claim that Provision 1 interferes with its right to assign employees under section 7106(a)(2)(A) of the Statute, the Agency merely cites National Federation of Federal Employees, Local 943 and Department of the Air Force, Headquarter Keesler Technical Training Center, Keesler Air Force Base, Mississippi, 19 FLRA 949 (1985) (Proposal 2) (Keesler Air Force Base). We conclude, however, that Provision 1 in this case is distinguishable from Proposal 2 in Keesler Air Force Base.

Proposal 2 in Keesler Air Force Base required the agency to assist employees unable to perform their regular duties because of illness or injury by attempting to find work assignments compatible with their disabilities or by reshaping the regular duties of their positions. The Authority concluded that because Proposal 2 required the agency either to reassign employees or to redesign jobs it directly interfered with the agency's right to under section 7106(a)(2)(A) to assign employees. Provision 1 in this case, on the other hand, does not require reassignment or detail to another work assignment or position, nor does it require that employees' current positions be redesigned to comport with employees' temporary disabilities. Rather, the provision requires only that the Agency exert a diligent effort to find available work for disabled employees to perform. Furthermore, the Agency acknowledges that the provision "does not oblige the [A]gency to restructure positions to accomodate employees[.]" Statement of Position at 3. Accordingly, there is no basis for concluding that the Provision 1 directly interferes with the Agency's right to assign employees under section 7106(a)(2)(A) of the Statute.

2. The Agency's Right to Assign Work Under Section 7106(a)(2)(B) of the Statute

a. Background

In American Federation of Government Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105, 1119 (1988) (Provision 6) (NAS, Oceana), the Authority reexamined the relationship between management's right to assign work under section 7106(a)(2)(B) of the Statute and employees' safety and health. The Authority stated the following about the relationship between an agency's right to assign work and medical restrictions imposed on the assignment of work by an agency's own medical authorities:

We believe that under section 7106(b)(2) of the Statute, the procedures by which an agency exercises its right to assign work may include restrictions on particular assignments or duties imposed by the agency's own medical authorities. When an agency's medical authorities exercise their responsibilities by restricting the assignment of duties to employees for medical reasons, we find that the agency may be contractually bound to observe those restrictions. That is, we believe that the right to assign work is a right exercised by the agency as a whole. The right to assign work does not entitle a portion of an agency to assign duties which are inconsistent with those which are found by another portion of the agency to constitute a risk to an employee's health and safety.

Id. at 1125.

Consistent with this analysis, the Authority stated that it would examine proposals requiring management to assign, or to refrain from assigning, certain duties for health and safety reasons to determine whether the proposals required management to adhere to restrictions on work assignments imposed by the agency's own medical authorities. The Authority stated that proposals requiring work to be assigned in conformity with restrictions imposed by the agency's medical authorities would constitute negotiable procedures under section 7106(b)(2) of the Statute. Id.

In NAS, Oceana, the Authority also stated that proposals restricting the assignment of work on grounds independent of and/or in conflict with those of the agency's own medical authorities would be found to directly interfere with management's right to assign work under section 7106(a)(2)(B). Id. at 1126. The Authority found, in addition, that the provision in dispute in that case, which required the agency to make limited duty assignments whether or not those assignments were recommended by the Agency's medical authorities, did not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. The Authority held as follows:

In our view, this provision does not address an adverse effect which results from the exercise of management's right to assign work. Rather, the proposal precludes the assignment of certain duties on the assumption that if they were assigned, there would be an adverse effect. That is, the proposal eliminates the possibility of an adverse effect by precluding the Agency from exercising its right to assign work.

We find that the potential adverse effect is not sufficient to establish that [the provision] is an "arrangement" for "employees adversely affected" by the exercise of the right to assign work. Accordingly, it is not a negotiable appropriate arrangement under section 7106(b)(3).

Id. at 1126-27 (emphasis in original).

We continue to adhere to the Authority's holding in NAS, Oceana, that the right to assign work is a right "exercised by the agency as a whole." Id. at 1125. In our view, an agency's right to assign work does not encompass assignments which are inconsistent with restrictions imposed by the agency's medical authorities. Accordingly, we affirm the Authority's holding in NAS, Oceana, that proposals or provisions which require an agency to observe medical restrictions on work assignments which are imposed by the agency's own medical authorities do not directly interfere with the agency's right to assign work.(1) As such proposals do not directly interfere with the agency's right to assign work, there is no need to analyze whether those proposals constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute.

We also continue to adhere to the Authority's holding in NAS, Oceana that requiring an agency to assign, or refrain from assigning, certain duties based on medical restrictions independent of those imposed by its own medical authorities directly interferes with the agency's right to assign work. In this regard, the difference between restrictions imposed by the agency's medical authorities and restrictions imposed by other physicians is not superficial. That is, although we find no interference with the agency's right when a proposal requires observance of restrictions imposed by the agency's own authorities, we find no basis in the Statute on which to make the same conclusion when the restrictions are imposed by other medical authorities.(2) This is not to say, of course, that restrictions imposed by outside, or private, physicians are, from a medical standpoint, entitled to less weight than those imposed by agency authorities. Instead, our conclusion is based solely on the agency's right to assign work under section 7106(a)(2)(B) of the Statute.

We will no longer adhere to the Authority's holding in NAS, Oceana, however, that proposals or provisions which require an agency to observe medical restrictions independent of those imposed by its own authorities may not be "arrangements" within the meaning of section 7106(b)(3) of the Statute. We note, in this regard, that subsequent to the Authority's decision, the United States Court of Appeals for the District of Columbia Circuit rejected determinations by the Authority that various proposals concerning matters affecting job requirements of teachers did not qualify as appropriate arrangements. Overseas Education Association, Inc. v. FLRA, 876 F.2d 960 (1989) (OEA). In particular, the Authority had held that management's establishment of job requirements, by itself, did not adversely affect employees within the meaning of section 7106(b)(3). See, for example, Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 628 (1987), rev'd sub nom. OEA, 876 F.2d 960.

In OEA, the court concluded that the Authority's construction of section 7106(b)(3) improperly restricted the scope of management's obligation to bargain. Id. at 965-66. Specifically, the court held:

Section 7106(a) . . . enumerates the prerogatives reserved to management, but the immunity of these rights from the duty to bargain is "[s]ubject" to Section 7106(b)(3). The latter section, in plain English, authorizes negotiation of "appropriate arrangements for employees adversely affected," not by a firing, demotion, or pay cut, but by "the exercise of any authority under this section by such management officials."

Id. at 965-66 (emphasis in original) (footnotes omitted). The court stated that the Authority erred because it "never measured the impact of management's changes upon the employees[,]" and remanded the cases to the Authority to consider the facts bearing on whether the job requirements in question adversely affected unit employees and, if so, whether the proposed arrangements were appropriate. Id. at 973-74.

In West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008 (1990) (West Point), in light of the court's decision in OEA, we reexamined the Authority's interpretation of section 7106(b)(3), in the context of a provision asserted to be an appropriate arrangement for employees adversely affected by changes in job requirements. We stated that, in West Point and in future cases, we would examine relevant facts and circumstances to measure the impact of management's imposition of, or changes in, job requirements to determine whether employees were adversely affected. West Point, 34 FLRA at 1012. We stated also that Authority decisions which were inconsistent with this approach would no longer be followed.

In light of the court's decision in OEA, as well as our subsequent decision in West Point, we conclude that the approach taken by the Authority to the analysis of proposed appropriate arrangements in NAS, Oceana finds no basis in the Statute. That is, we find no statutory basis for the Authority's conclusion in NAS, Oceana that a provision which seeks to eliminate possible adverse effects is not appropriate for consideration as an appropriate arrangement. We will, therefore, not employ this blanket rule. Instead, we will base determinations as to the negotiability of all proposed arrangements, including arrangements which seek to ameliorate the adverse effects of the exercise of a management right by inhibiting the exercise of that right, on evaluation of the facts and circumstances in each case.

Accordingly, in this and future cases, we will analyze proposals and provisions seeking to ameliorate the adverse effects resulting from the exercise of a management right, including provisions like Provision 6 in NAS, Oceana and Provision 1 herein, consistent with the framework discussed in West Point. We will, as a threshold matter, determine whether a proposal or provision is an arrangement for employees adversely affected by the exercise of management rights by examining "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986). Proposals addressing "purely speculative or hypothetical concerns, or which are otherwise unrelated to management's exercise of its reserved rights," will be excluded from consideration as appropriate arrangements. American Federation of State, County and Municipal Employees, Local 3097 and Department of Justice, 24 FLRA 453, 458 (1986) (Chairman Calhoun dissenting). Where an adverse effect is reasonably foreseeable, and the disputed provision or proposal is intended to be an arrangement for employees adversely affected, we will proceed to examine whether the provision or proposal excessively interferes with management's rights.

As noted above, we continue to adhere to the Authority's holdings in NAS, Oceana that (1) proposals which require an agency to observe restrictions on work assignments which are imposed by its own medical authorities do not directly interfere with the agency's right to assign work; and (2) proposals which impose restrictions independent of those imposed by the agency's medical authorities directly interfere with the agency's right. We will, however, no longer follow NAS, Oceana, or other cases, to the extent that it holds that provisions such as Provision 1 here do not qualify for consideration as appropriate arrangements under section 7106(b)(3) of the Statute.

b. To the Extent That Provision 1 Requires the Agency to Observe Medical Restrictions Independent of Those Imposed by Its Own Medical Authorities, the Provision Directly Interferes With Management's Right to Assign Work under Section 7106(a)(2)(B)

Provision 1 requires the Agency to make "a diligent effort" to assign work to employees requesting to return to duty after an injury or illness based on temporary limitations "as substantiated by a doctor's certificate." We note, as a threshold matter, that a requirement that an effort be made to assign work need not necessarily be read as encompassing a requirement that work be assigned inconsistent with management's rights. See American Federation of Government Employees, Local 2298 and U.S. Department of the Navy, Navy Resale Activity/Navy Exchange, Naval Weapons Station, Charleston, South Carolina, 35 FLRA 1128, 1131-34 (1990) (Proposal 2).

The Union, however, interprets the provision as requiring the Agency to "assign available work to employees within the limitations set by a physician." Reply Brief at 2. The Union's statement is not inconsistent with the plain wording of the provision. Accordingly, and without addressing the extent to which we would find that the provision directly interferes with the Agency's right to assign work in the absence of the Union's statement, we adopt the Union's interpretation of the proposal for the purposes of this decision.

The provision does not specify whether the physician issuing the certificate is an Agency medical authority or the employee's own physician. In addition, although the Agency raised the issue and the applicability of NAS, Oceana in its Statement of Position, the Union did not address this question. Consequently, based on the plain wording of the provision, we find that the provision would require management to adhere to limitations established by medical authorities other than the Agency's own. As such, Provision 1 imposes restrictions on the Agency's right to assign work independent of any that might be imposed by the Agency's own authorities. We conclude, therefore, consistent with our previous discussion, that the provision directly interferes with the Agency's right, under section 7106(a)(2)(B), to assign work. See Bremerton Metal Trades Council and Naval Supply Center, Puget Sound, 32 FLRA 643, 646-48 (1988) (Provision 3).

c. Provision 1 Constitutes an "Appropriate Arrangement" within the Meaning of Section 7106(b)(3)

The Union asserts that it "intends [Provision 1] to function as an appropriate arrangement for employees facing temporary medical restrictions who may be adversely affected by the exercise of management's right to assign employees and work under sections 7106(a)(2)(A) and (B)." Reply Brief at 1-2. For the following reasons, we conclude that the provision constitutes a negotiable appropriate arrangement.

Initially, we find that Provision 1 constitutes an arrangement for adversely affected employees under section 7106(b)(3). We agree with the Union that the provision "affords employees already burdened by illness or injury a reasonable protection from additional threats to their health." Reply Brief at 3. The additional threats to employees' health reasonably could be anticipated to flow from management's exercise of its right to assign work incompatible with medical recommendations.

In addition, Provision 1 would ameliorate the adverse effect on employees of not being assigned any work at all because of their inability, for medical reasons, to perform their "regular" jobs. In such circumstances, employees must either deplete their sick leave balances or forgo their normal income because their sick leave balances have been exhausted. The provision would also mitigate the adverse effect stemming from employees' failure to satisfactorily perform their regular work because of their temporary disabilities. Insofar as Provision 1 obligates management to exert a "diligent effort" to find work consistent with medically-imposed limitations for temporarily incapacitated employees, we conclude that the provision provides performance, economic and health-related benefits to employees, and is an "arrangement" under section 7106(b)(3).

In order to determine whether the proposed arrangement contemplated by Provision 1 is "appropriate," within the meaning of section 7106(b)(3), we must examine whether the negative impact on management's right to assign work is disproportionate to the benefits conferred by the provision on employees. See Kansas Army National Guard, 21 FLRA at 33. That is, we must decide whether the provision excessively interferes with the right to assign work.

Provision 1 restricts management's ability to assign work by requiring the Agency to exert "a diligent effort" to make assignments consistent with physicians' certifications, including those of physicians other than those employed by the Agency. On the other hand, the Agency is only required to make a diligent effort to find available work consistent with the prescribed limitations and to assign it to the employee if he or she is qualified to perform the tasks. The provision does not oblige the Agency to create work for returning employees and does not require the Agency to assign work to employees who are not qualified to perform the work. If no appropriate work is available, the Agency may deny the employee's request to return to work.

On balance, we find that the provision's negative impact on management's right to assign work is far outweighed by the benefits the provision confers on employees. The Agency would be required only to make efforts to identify and assign available work to qualified employees. The Agency would not be required to create work or to assign it to employees who were not qualified to perform it. Employees who are under certified medical restrictions, however, would be assured of an opportunity to be considered to perform necessary and available work for which they are qualified, and which would not aggravate their medical conditions. In this regard, enabling qualified employees to perform available work which would not impede their recovery from illness or injury provides benefits, in our view, to both the Agency and employees. We conclude, therefore, that Provision 1 does not excessively interfere with Agency's right to assign work and, therefore, constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.(3)

III. Provision 2

Article VIII. PERFORMANCE APPRAISAL. Section 13.b(5). At the end of the rating period, the supervisor's evaluation shall make allowances for factors beyond the control of the employee which may have caused the employee not to have achieved a specific performance.

A. Positions of the Parties

The Agency asserts that Provision 2 directly interferes with its rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency contends that the provision "clearly deprives the agency of the discretion to determine whether and when factors beyond an employee's control should be taken into consideration[]" in evaluating, for example, the employee's ability to adapt and carry out assignments in unforeseen circumstances. Statement of Position at 6.

The Union claims that Provision 2 does not prevent the Agency from evaluating an employee's ability to adapt to unforeseen events. Rather, according to the Union, the provision "simply provides that when an employee's performance is affected by circumstances which the employee could not reasonably control, those circumstances will at least be weighed by the rating official." Reply Brief at 4. The Union further asserts that the provision is consistent with applicable law in that it is intended to ensure the accuracy of the evaluation process. Furthermore, the Union argues that the provision is concerned with the application, not the content, of performance standards established by the Agency.

B.Analysis and Conclusions

Management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute encompass the authority to identify critical elements of performance and to establish performance standards. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982) (NTEU). Proposals which restrict an agency's right to determine the content of performance standards and critical elements directly interfere with management's rights to direct employees and to assign work. Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384, 385 (1987) (POPA), aff'd mem. sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam); NTEU, 691 F.2d at 564.

In this regard, proposals absolving employees of accountability for meeting certain levels of performance directly interfere with management's rights to direct employees and assign work because they preclude management from determining the content of performance standards used to evaluate employees' work. See National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62, 63-65 (1988). Likewise, proposals requiring management to adjust or change performance expectations in circumstances identified by the proposals dictate the content of applicable performance standards and, thereby, directly interfere with management's rights. See, for example, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Mid-America Program Service Center, Kansas City, Missouri and American Federation of Government Employees, AFL-CIO, 33 FLRA 454, 461-62 (1988); Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389, 1398 (1987), aff'd as to other matters sub nom. Patent Office Professional Association v. FLRA, 873 F.2d 1485 (D.C. Cir. 1989).

On the other hand, proposals governing only the application of performance standards and critical elements do not conflict with management's rights to direct employees and to assign work. See, for example, POPA, 25 FLRA at 385-87. Accordingly, the task in deciding the negotiability of Provision 2 "is primarily one of determining, based on the record, whether [it] concern[s] substantive matters, such as the content of performance standards and critical elements, or whether [it] concern[s] the application of those standards and elements and other nonsubstantive matters such as procedures." Id. at 387.

With respect to the latter point, we recently have considered proposals similar to the provision in dispute here. First, in National Treasury Employees Union and Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 34 FLRA 1000 (1990) (SSA, Hearings and Appeals), we considered the negotiability of three provisions addressing performance evaluations. Two of the three provisions required the agency to "consider" various factors in assessing employee performance; the remaining provision required the agency to "take into account" specified factors in assessing performance. We concluded that the three provisions directly interfered with the agency's rights to direct employees and assign work and, as relevant here, stated the following:

The [u]nion uses the terms "consider" and "to take into account" interchangeably. The term "consider" connotes that management will review the specified factors but will remain free to base its decision on grounds other than those factors. The phrase "to take into account," on the other hand, connotes that management's decision will be based, at least in part, on the specified factors. Because the [u]nion uses the terms interchangeably and based on the [u]nion's statements as to the effect of the provisions, we conclude that the provisions are intended to

require management not only to review the specified factors in evaluating an employee's performance, but also to base its evaluation of the employee--at least in part--on the results of that review. In other words, the provisions are intended to require management to modify the level of work required of an employee to achieve a given performance rating.

Id. at 1005-06 (citations omitted).

Subsequently, in American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, Vallejo District Office, 35 FLRA 1276 (1990) (SSA, Vallejo), we considered the negotiability of three proposals (Proposals 1 through 3) requiring the agency to "consider" various factors, including factors "outside the control of the employee," in assessing employee performance. We concluded that the proposals did not directly interfere with the agency's rights to direct employees and assign work:

The proposals would not obligate the Agency to change any of its existing performance standards and would not inhibit the [a]gency in promulgating new standards. The proposals, moreover, would not require the [a]gency to revise any performance evaluations based on the identified events or processes. Rather, the sole objective of the proposals, as described by their wording and by the [u]nion's explanation of their intent, is to identify certain circumstances which management should consider when evaluating employee performance.

Id. at 1282 (citation omitted). We compared the proposals in SSA, Vallejo to the provisions in dispute in SSA, Hearings and Appeals. We stated that it was clear from the record in SSA, Hearings and Appeals that "the provisions were intended to require management not only to review the specified factors . . . but also to require management to modify the level of work required of an employee to achieve a given performance rating." SSA, Vallejo, 35 FLRA at 1282.

Provision 2 would require the Agency "to make allowances" in an employee's evaluation for "factors beyond the control of the employee which may have caused the employee not to have achieved a specific performance." In our view, as plainly worded, the provision would require the Agency to change or adjust its performance expectations in light of the factors specified in the provision. That is, the requirement that the Agency "make allowances" for certain factors encompasses more than consideration of those factors. The provision would also require the Agency, in applying performance standards, to modify its performance expectations in light of those factors.

Our reading of the provision is consistent not only with the provision's plain wording but also with the Union's explanation, in its Petition for Review, that the provision would "require the management official evaluating an employee to make allowances for factors beyond the employee[']s control[.]" Petition for Review at 2. We note, however, the Union's assertion in its Reply Brief that the provision "requires only that management consider circumstances" beyond an employee's control. Reply Brief at 4. The Union explains also that the provision "simply provides that when an employee's performance is affected by circumstances" beyond the employee's control, "those circumstances will at least be weighed by the rating official." Id.

In our view, the Union's statements in its Reply Brief are inconsistent with the plain wording of the provision. A requirement that the Agency "make allowances" for various factors cannot, in our view, be read as encompassing only consideration of those factors. As the Union's statements in its Reply Brief are inconsistent with the plain wording of the provision, we will base our decision on the plain wording.

We find, consistent with the foregoing discussion, that Provision 2 would require the Agency to adjust its performance expectations in light of certain factors beyond the control of employees. As such, the provision is similar, in effect, to the provisions in dispute in SSA, Hearings and Appeals. Consequently, we conclude that Provision 2 directly interferes with the Agency's rights to direct employees and assign work.

Unlike its position with respect to Provision 1, the Union does not assert that Provision 2 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. We will not, therefore, address whether the provision excessively interferes with the Agency's rights to direct employees and assign work. Accordingly, as Provision 2 directly interferes with the Agency's rights, we conclude that it is nonnegotiable.

IV. Provision 3

Article XX. REALIGNMENT OF WORK FORCE AND REDUCTION IN FORCE. Section 1.b. When reduction in personnel at any ROICC [Resident Officer in Charge of Contracting] office is necessary, volunteers will first be solicited from the force at reducing ROICC offices for no cost transfers to specific gaining ROICC offices. If more than one (1) volunteer is received for transfer to a single available position, selection will be made by seniority based on service computation date of the employees at the reducing ROICC office. In the event that no volunteers are obtained for the transfer, the employee with the least amount of government service will be selected for the transfer.

A. Positions of the Parties

The Agency contends that Provision 3 directly interferes with its rights to hire, assign, and remove employees under section 7106(a)(2)(A) of the Statute, and its right to select employees from any appropriate source under section 7106(a)(2)(C). According to the Agency, the provision deprives it of its right to determine whether a given position should be filled and who should be selected to fill that position. The Agency asserts that the provision is not a negotiable procedure under section 7106(b)(2) because the provision directly interferes with its rights to hire and select.

The Agency further contends that the provision is not an appropriate arrangement within the meaning of section 7106(b)(3). The Agency argues that, by mandating the placement of employees during a realignment or reduction in force without regard to the Agency's needs, the provision excessively interferes with its rights to hire under section 7106(a)(2)(A) and to select under section 7106(a)(2)(C).

The Union contends that the provision is a negotiable procedure under section 7106(b)(2). The Union asserts that the provision establishes "an equitable procedure for filling vacant positions after the agency has already decided to transfer qualified employees from one ROICC office to another. The duties and responsibilities of a transferred employee remain unchanged; the only difference is where the work is performed." Reply Brief at 7 (emphasis in original). Thus, the Union claims that Provision 3 does not directly interfere with the Agency's rights to select and to hire.

B. Analysis and Conclusions

The right to assign employees under section 7106(a)(2)(A) encompasses the authority to determine the particular qualifications and skills needed to perform the work of a position as well as the authority to determine which employees possess the requisite qualifications and skills. See, 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, 382 (1988). In addition, the discretion to decide whether or not to fill vacancies, or whether or not to fill vacancies with bargaining unit employees, are components of the right to assign employees and of the right to make selections for appointments from any appropriate source under section 7106(a)(2)(C). National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, 21 FLRA 905, 908 (1986). Where management determines that it is necessary for employees to perform the duties of their positions at a different location, however, a proposal setting forth a procedure for determining which employees, from among the group of employees who are assigned to the positions and possess the required qualifications, who will be assigned to perform the work at the new location does not directly interfere with an agency's right to assign employees. National Treasury Employees Union and Internal Revenue Service, 28 FLRA 40, 43-44 (1987). See also International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 115-16 (1987) (Provision 4). Moreover, the Authority has held that when management finds that two or more employees or candidates for an assignment are equally qualified and capable of performing under the criteria management elects to apply, the procedure by which one of the equally qualified employees will be selected is negotiable under section 7106(b)(2) of the Statute. Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 793 (1987) (Proposal 46) (OEA, Inc.), affirmed as to other matters sub nom. Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988).

The Union contends that:

[Provision 3] does not undermine the agency's right to fill or not fill positions made vacant by a realignment. Nor does the [provision] involve the union in determining whether a realignment is even necessary. Instead, the [provision] establishes an equitable procedure for filling vacant positions after the agency has already decided to transfer qualified employees from one ROICC office to another. The duties and responsibilities of a transferred employee remain unchanged; the only difference is where the work is performed.

Reply Brief at 7 (emphasis in original).

In our view, the Union's explanation of the provision is not inconsistent with its plain wording. Nothing in the provision would require the Agency to fill vacancies in one field office with unit employees from another office, because, as the Union emphasizes, the steps prescribed by Provision 3 could only be invoked "after the agency has already decided to transfer qualified employees from one ROICC office to another." Id. (emphasis in original). That is, if management decided to fill positions at a given office by other means, including outside recruitment or promotion, Provision 3 would not apply to the selection process. Further, if the Agency decided to fill vacancies in one office with employees from another office, nothing in the provision would require the Agency to transfer unqualified employees. Instead, consistent with the Union's explanation, the provision would apply only after the Agency decided to fill vacancies at one office by transferring employees from another office and would apply only to qualified employees.

Viewed in this light, Provision 3 concerns only the location at which qualified employees will perform work previously assigned to their positions. Stated simply, the provision becomes effective only after the Agency determines to fill vacancies by transferring qualified unit employees. Therefore, the provision does not require the Agency to fill positions in any particular manner. Conseq