39:0675(55)NG - - AFGE, National Border Patrol Council and Justice, INS, Border Patrol Western Region - - 1991 FLRAdec NG - - v39 p675



[ v39 p675 ]
39:0675(55)NG
The decision of the Authority follows:


39 FLRA No. 55

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL BORDER PATROL COUNCIL

(Union)

and

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

U.S. BORDER PATROL WESTERN REGION

(Agency)

0-NG-1770

DECISION AND ORDER ON NEGOTIABILITY ISSUES

February 15, 1991

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 appeal concerns 6 proposals offered by the Union to settle disputes arising from the Agency's cancellation of details of approximately 24 unit employees.

Proposal 1 provides that the Agency will consider the shortened details as full 30-day details for the purpose of awarding Officer Corps Rating points. Proposal 2 provides that the Agency will provide the Union with the time and attendance reports of the affected employees for the period that they were on detail. Proposal 3 provides that the parties agree that detailed employees had been scheduled to work 128 hours of overtime during the details. Proposal 4 provides that the number of hours of overtime actually worked by the employees on detail will be subtracted from the base figure of 128 hours in order to determine how many hours each employee lost because of the early termination of the detail. Proposal 5 provides that the Agency will offer overtime on a priority basis to each employee who lost overtime as the result of the early termination of the details. Proposal 6 provides that the Agency will offer all affected employees the opportunity to work twice the amount of overtime due under Proposal 4 until the employees have recouped the overtime they lost due to the early termination of the details. For the following reasons, we find that all of the proposals are negotiable.

II. Background

In March 1989, there were approximately 45 employees, whose normal duty stations are in the San Diego Sector, on detail to McAllen, Texas for 30 days. On March 23, 1989, the Agency verbally notified the Union that it would return the detailed employees to San Diego by March 31, 1989. The Union requested bargaining on the early termination of the details and insisted that the Agency maintain the status quo pending the completion of negotiations.(1) The Union also requested the assistance of the Federal Mediation and Conciliation Service (FMCS) and the Federal Service Impasses Panel (FSIP). On March 31, 1989, the details of the employees from San Diego to McAllen were terminated.

Subsequently, the parties bargained with the assistance of a representative of the FMCS and, according to the Agency, reached agreement on the extent to which affected employees would receive credit for full 30-day details for purposes of awarding Officer Corps Rating points.(2) On May 16, the Agency issued a Memorandum to the Officer Corps Rating Panel (Panel) asking that the Panel give consideration to assigning affected employees one merit point for the shortened details.

On June 27, 1989, the Union submitted to the Agency the six proposals in this case. On August 9, 1989, in its statement of position to the FSIP, the Agency claimed that the parties had already reached agreement on the experience credit proposal and declared the overtime proposals to be nonnegotiable. On August 22, 1989, the FSIP declined jurisdiction over the impasse because, in its view, questions concerning the Agency's obligation to bargain had to be resolved in an appropriate forum before a determination could be made as to whether an impasse existed.

On August 6, 1989, the Union filed an Unfair Labor Practice (ULP) charge with the Authority alleging that the Agency violated section 7116(a)(1) and (5) by its failure to bargain with the Union prior to its early termination of the McAllen detail. By letter dated October 13, 1989, the Union served the Agency with a request for written allegations of nonnegotiability on the six proposals. By letter dated October 27, 1989, the Agency notified the Union that it would not provide an allegation of nonnegotiability because of the prior filing of the ULP charge.

On November 21, 1989, the Union filed the petition for review which is now before us. Subsequently, on December 6, 1989, the Authority requested that the Union file with the Authority a statement explaining why the issues in the negotiability appeal and the ULP case were different or, in the alternative, selecting which procedure it wanted to pursue first. The Union replied that the ULP case and the negotiability appeal addressed different issues and that they should be processed concurrently.

Currently, the General Counsel is holding the ULP charge in abeyance pending the Authority's decision as to whether the two cases may be processed concurrently.

III. Preliminary Matters

A. Positions of the Parties

The Agency contends, as relevant here, that the Union's negotiability appeal should be dismissed because: (1) the ULP charge raises the same issues as those in the negotiability appeal and (2) the negotiability appeal was untimely filed.

The Agency contends that "the gravamen of the [ULP] charge is that the agency refused to bargain on the union's proposals before implementing the change." Statement of Position at 8. The Agency asserts, in this regard, that in both the ULP and negotiability cases, the Union is seeking a bargaining order. The Agency argues that although many aspects of the "Union's proposals are nonnegotiable because of inconsistencies with law or regulation, including [section] 7106 [of the Statute], that was not, at least for the most part, management's reason for stating that it was not obligated to bargain with the union." Id. at 9.

The Agency also contends that the Union's negotiability appeal was untimely filed. The Agency claims that the time limit to file the appeal began to run after FSIP advised the parties that it declined jurisdiction over the dispute because of questions concerning the Agency's obligation to bargain over the proposals. The Agency asserts that the Authority should reconsider its decision in American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 24 FLRA 512 (1986) (Naval Weapons Station), holding that a union is not required to file a negotiability appeal in response to an unsolicited allegation of nonnegotiability made in an FSIP proceeding, in light of the decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988) (Carswell AFB), where the Authority held that FSIP was not precluded in all circumstances from determining whether proposals were negotiable. In the alternative, the Agency asserts that the "15-day time limit should begin to run when the union is notified by the agency that it is refusing to make a formal declaration of nonnegotiability or when 10 [days] has [sic] passed since requesting the declaration and no declaration has been made." Statement of Position at 15.

Finally, the Agency requests the Authority to reconsider its decision in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), addressing the standard for determining whether a proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency argues that any proposal found to interfere with a management right is nonnegotiable even if the proposal is intended to be an appropriate arrangement.

The Union asserts that the issues raised in its ULP charge are distinct from the issues in the negotiability appeal. Therefore, the Union argues that the negotiability issues in its six proposals are properly before the Authority. In the alternative, if "the Authority determines that the issues presented herein are appropriate for processing under [section] 2423 [of the Authority's Rules and Regulations], [the Union] requests that the Authority proceed with the ULP first." Reply Brief at 6.

The Union also claims that its negotiability appeal was timely filed because the Agency did not respond to its written request for allegation of nonnegotiability. The Union argues that as it did not receive a response from the Agency within 10 days of its request for a declaration of nonnegotiability, the Union was not bound by the 15-day time limit for filing a petition for review.

B. Analysis and Conclusions

1. The Union's Negotiability Appeal Was Timely Filed

We reject the Agency's argument that the Union's negotiability appeal is untimely. The Authority found in Naval Weapons Station, 24 FLRA at 513 that:

[I]t is well established that a union is not required to file a petition for review in response to an allegation of nonnegotiability made by an agency in the context of a FSIP proceeding. Rather, the union may ignore such unsolicited allegation and instead elect to request in writing a written allegation of nonnegotiability from the Agency.

See also, for example, American Federation of Government Employees, Local 2430 and U.S. Department of Veterans Affairs Medical Center, Fort Lyon, Colorado, 36 FLRA 245 (1990); National Federation of Federal Employees, Local 422 and U.S. Department of the Interior, Bureau of Indian Affairs, Colorado River Agency, 34 FLRA 721 (1990).

The Authority's decision in Carswell AFB, addressing FSIP's authority to resolve negotiability questions, does not address or affect a union's obligations in response to unsolicited allegations of nonnegotiability made in an FSIP proceeding. Accordingly, contrary to the Agency's argument, Carswell AFB provides no basis on which to reconsider Naval Weapons Station.

In this case, the Union did not file a petition for review in response to the Agency's allegation of nonnegotiability made in the FSIP proceeding. Rather, the Union served the Agency with a request for written allegations of nonnegotiability of the Union's proposals. The Agency refused to provide written allegations of nonnegotiability. As the Agency did not provide written allegations of nonnegotiability within 10 days of the Union's request, as required by section 2424.3 of the Authority's Rules and Regulations, the Union could timely file its negotiability appeal with the Authority at any time after the 10-day period had expired. See Naval Weapons Station, 24 FLRA at 514. Consequently, the Union's negotiability appeal is timely filed.

2. The Union's Negotiability Appeal Is Properly Before the Authority

The Agency contends that the Union's negotiability appeal should be dismissed because the ULP charge filed by the Union covers the same issues raised in the negotiability appeal. The Union claims that the issues raised in its ULP charge and its negotiability appeal are different and that the cases should be processed concurrently.

Sections 2423.5 and 2424.5 of the Authority's Rules and Regulations provide, in pertinent part, that:

Where a labor organization files an unfair labor practice charge . . . which involves a negotiability issue, and the labor organization also files . . . a petition for review of the same negotiability issue, the Authority and the General Counsel ordinarily will not process the unfair labor practice charge and the petition for review simultaneously. Under such circumstances, the labor organization must select under which procedure to proceed.

The Authority found in Veterans Administration (Washington, D.C.) and Veterans Administration Hospital (Brockton, Massachusetts), 35 FLRA 188 (1990) (Brockton VA Hospital) that:

[N]othing in the Authority's Regulations concerning a party's election to proceed under an unfair labor practice proceeding or a negotiability proceeding supports a conclusion that a party may litigate the same issues in both proceedings. Rather, the procedures enable the filing party to pursue in a second proceeding any issues which are unresolved after the first proceeding. In this regard, certain issues may be resolved only in an unfair labor practice or a negotiability proceeding . . . .

In cases which involve issues which may be resolved in only one forum as well as other issues which may be resolved in both, the selection procedure enables a union to determine which issues will be resolved first. Unresolved issues may then be litigated in the second proceeding.

Id. at 195-196.

In its ULP charge, the Union alleges that the Agency violated section 7116(a)(1) and (5) of the Statute by failing and refusing to bargain before unilaterally terminating the McAllen detail before its completion. In its negotiability appeal, the Union seeks to determine whether its six proposals are negotiable. The issues raised in both the negotiability appeal and the ULP charge arise out of the termination of details of employees to McAllen, Texas. As is discussed in more detail below, certain Agency arguments before us in this case may not be resolved in a negotiability proceeding. However, the record before us does not demonstrate that the ULP charge involves the negotiability of the six proposals encompassed by the Union's petition for review. Moreover, even if the charge involves a negotiability issue, the Authority's Regulations provide only that ULP charges and negotiability appeals "ordinarily" will not be processed concurrently.

Through administrative inadvertence, our determination on the Union's request for concurrent processing was not made at the time the parties' submissions were complete. We regret the error. As noted previously, the General Counsel is now holding the Union's ULP charge in abeyance. In these unique circumstances, we will resolve the negotiability appeal. After issuance of our decision, the Union may seek to litigate any unresolved issues in the ULP proceeding.

3. Appropriate Arrangements

In KANG, the Authority established its test for determining whether proposals are negotiable as "appropriate arrangements" under section 7106(b)(3) of the Statute. The Authority referenced the decision of the U.S. Circuit Court of Appeals for the District of Columbia in American Federation of Government Employees, AFL-CIO, Local 2782 v. Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983), and stated that the court "enunciated a standard which requires an analysis of whether 'excessive interference' with a right reserved to management would result from the implementation of the proposal." KANG, 21 FLRA at 25.

We decline the Agency's request that we reconsider KANG. Accordingly, based on KANG, we reject the Agency's assertion that any proposal found to interfere with a reserved right is nonnegotiable even if the proposal is intended to be an appropriate arrangement. Instead, to determine whether a proposal is negotiable as an appropriate arrangement, we will determine whether the proposal constitutes an arrangement and, if it does, whether it excessively interferes with a management right under section 7106 of the Statute. See, for example, National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 835 (1990) (Provision 1); National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 622 (1990) (Proposal 1).

IV. Proposal 1

1. The Agency agrees to execute a Memorandum with the Union concerning the length of the McAllen detail of the aforementioned employees, which states that the detail is to be considered as a full thirty (30) day detail for the purpose of considering the significance of the detail under the awarding of Officer Corps Rating points. All affected employees will be provided with a copy of such MOU, and will receive instructions from the Agency authorizing them to claim the detail as a thirty (30) day detail on their Request for Officer Corps Rating attachments. The Officer Corps Rating panel will also receive a copy of the MOU, which will super[s]ede the Agency's May 16, 1989 correspondence to the Panel.

A. Positions of the Parties

The Agency claims that Proposal 1 is a "blatant violation of merit system principles." Statement of Position at 23. The Agency asserts, in this regard, that the proposal would require the Agency to give affected employees credit for work experience they did not earn. Additionally, the Agency asserts that Proposal 1 interferes with its right to assign and lay off employees and assign work. The Agency claims that this proposal has the same effect as a proposal found nonnegotiable by the Authority in Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734 (1987) (Proposal 59), affirmed as to other matters sub nom. Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988), because "it would require management to consider an employee to have qualifying experience even if the employee did not, in fact, have it." Statement of Position at 25.

The Agency acknowledges that all the proposals "were intended to be arrangements for employee[s] affected by the exercise by management of its right to assign work. However, the employees here were not adversely affected." Statement of Position at 17 (emphasis in original). The Agency alleges that the "alleged loss of the credit experience is also not an adverse impact. They would not have earned a credit even had they completed the detail. This is because a credit is earned only if the detail is to work which enhances one's ability to advance." Id. at 20-21 (footnote omitted). Further, the Agency claims that even if "the proposal can be considered as an appropriate arrangement for employees adversely affected by the exercise of management's right to terminate a detail, it interferes with the right to determine qualifications to an excessive degree." Id. at 25.

The Union contends that Proposal 1 does not affect the Agency's ability to determine whether to credit employees with promotional points for the McAllen detail. The Union asserts that nothing in the proposal "would require the Agency to guarantee any employee the additional point on the basis of the McAllen detail, but in conjunction with the ranking procedure, Proposal 1 would require treating the McAllen detailees equally with others who had served on a qualifying detail." Reply Brief at 17.

The Union notes that the Agency has conceded that "there are exceptions such that the requirement for 'significant' (30 days or more) duration can be ignored." Id. at 18 (citing the Agency's Statement of Position at 24). Accordingly, the Union argues that "it is not interference with merit promotion principles to treat details intended to last 30 days like details that actually last 30 days[.]" Id. at 18-19. Further, the Union asserts that Proposal 1 does not address promotion and that "it's up to the employer's established mechanisms to determine whether 'significant' details will receive points for Officer Corps ranking purposes." Id. at 20.

The Union also asserts that although none of the disputed proposals directly interferes with a management right, if the Authority finds to the contrary, the proposals are appropriate arrangements for employees adversely affected by the exercise of managements right to assign employees and assign work pursuant to section 7106(a)(2)(A) and (B) of the Statute.

B. Analysis and Conclusions

Proposal 1 requires, as relevant here, that the length of the McAllen detail "is to be considered as a full thirty (30) day detail for the purpose of considering the significance of the detail under the awarding of Officer Corps Rating points." According to the Union, Proposal 1 does not require the Agency to guarantee that employees will receive a point by the Panel for the McAllen detail but, rather, requires only that the employees whose details were terminated early be given the same consideration as the employees who completed the 30-day detail.(3)

We conclude that the Union's interpretation of the proposal is consistent with the plain wording of the proposal as it is written. Accordingly, we adopt it for the purposes of this decision. We note, in this regard, that Proposal 1 requires the Agency to provide the Panel with a Memorandum of Understanding stating that affected employees should be considered to have completed a full 30-day detail. Nothing in the proposal, however, would affect the Agency's established procedures for determining either the qualifications of employees or whether to award promotion points. Moreover, the proposal neither guarantees that affected employees will receive rating points nor requires the Agency to promote the affected employees.

We also find that the Agency has not established that Proposal 1 violates the merit system principles enumerated in "[t]he introduction to the [F]ederal [G]overnment's X-118 Handbook on Qualification Standards [which] makes it quite clear that an employee must actually have required experience or a described substitute[.]" Statement of Position at 24 (footnotes omitted). As noted above, Proposal 1 does not require the awarding of promotion points to, or the promotion of, unqualified employees. Accordingly, the proposal does not violate the merit system principles referenced by the Agency.

In sum, the Agency has not demonstrated and it is not otherwise apparent that Proposal 1 directly interferes with its rights to assign work or determine the personnel by which agency operations shall be conducted under section 7106(a)(2)(B) of the Statute. Accordingly, we find that Proposal 1 is within the duty to bargain.

V. Proposal 2

2. The Agency agrees to provide the Union with the time and attendance reports of the affected employees covering the time period they were actually detailed to McAllen Sector, for the purpose of calculating the overtime actually worked by the employees.

A. Positions of the Parties

The Agency argues that Proposal 2 would require the release to the Union of personnel records without the consent of the employees involved. The Agency claims that the release of such records "would not serve the purpose of the Freedom of Information Act [FOIA]. Therefore, they are covered by exemption 6 of that Act, and cannot be released to the [U]nion because doing so would violate the Privacy Act." Statement of Position at 26.

The Union argues that Proposal 2 "meets the definition of data [found] in [section] 7114(b)(4)." Reply Brief at 21. Further, the Union asserts that it "cannot prove its case concerning 'adverse effects' or the equity of its proposals on their merits in the absence of the data." Id.

B. Analysis and Conclusions

The duty to bargain under the Statute extends to the release and disclosure of information concerning the conditions of employment of unit employees to the extent that the disclosure is not contrary to law or regulation. See National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62, 67-72 (1988) (Provisions 9 and 10) (Food and Nutrition Service). Moreover, in negotiability cases concerning the release of information, section 7114(b)(4) is a "floor," not a "ceiling," on the type of information an agency may agree to release. National Treasury Employees Union and Department of Energy, 22 FLRA 131, 134 (1986). That is, section 7114(b)(4) establishes the minimum information which must be disclosed to a union. Nothing in section 7114(b)(4) prevents a union from negotiating with an agency for the release of information beyond that which the union is entitled to under the Statute. Id.; See also Merit Systems Protection Board Professional Association and Merit Systems Protection Board, Washington, D.C., 30 FLRA 852, 854-855 (1988).

In this case, the Agency's sole claim regarding Proposal 2 is that the information sought by the Union is covered by exemption (b)(6) of FOIA and cannot be released to the Union because doing so would violate the Privacy Act. The Privacy Act generally prevents disclosure of personal information about Government employees without their written consent. However, in accordance with section (b)(2) of the Privacy Act, 5 U.S.C. º 552a(b)(2), information must be disclosed if disclosure would be required by the FOIA, 5 U.S.C. º 552. As relevant here, under exemption (b)(6) of FOIA, 5 U.S.C. º 552(b)(6), disclosure is not required of information in "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."

In determining whether requested information is barred from disclosure by FOIA exemption (b)(6), an individual's right to privacy must be balanced against the public interest in having the information disclosed. See Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA No. 110, slip op. 15 (1991). Applying the balancing test here, we find that the balance favors the disclosure of the information sought by the Union.

We conclude that the public interest in the disclosure of the affected employees' time and attendance records outweighs the personal privacy interests of the employees and will facilitate the Union's ability to bargain collectively on behalf of unit employees. We note, in this regard, that "the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them . . . safeguards the public interest [and] contributes to the effective conduct of public business[.]" 5 U.S.C. º 7101(a)(1). Moreover, in order properly to represent unit employees who lost overtime work because of the premature termination of their McAllen details, it is necessary for the Union to know how many overtime hours each employee worked. In addition, although an employee has privacy interests in his or her time and attendance records, those interests would appear to be minimal. Finally, the intrusion into the privacy of the affected employees which would result from the proposal would be minimized by the fact that disclosure would be made only to the Union and only for the purpose of performing its representational functions.

Accordingly, we find that the release of the time and attendance records of affected employees required by Proposal 2 does not constitute a clearly unwarranted invasion of personal privacy and, therefore, is not barred by the Privacy Act. Therefore, as no other basis for finding the proposal to be nonnegotiable is asserted by the Agency or is apparent to us, we conclude that Proposal 2 is within the duty to bargain. See Department of the Air Force, Scott Air Force Base, Illinois, 38 FLRA 410 (1990), petition for review filed sub nom. Department of the Air Force, Scott Air Force Base, Illinois v. FLRA, No. 91-1042 (D.C. Cir. Jan. 24, 1991); Food and Nutrition Service.

VI. Proposals 3 and 4

3. The parties agree that all employees detailed to "Operation Hold-the-Line" in McAllen Sector were scheduled to work thirty-two (32) hours of overtime per week, or one hundred and twenty-eight (128) hours of overtime for a thirty (30) day detail period.

4. The number of hours of overtime actually worked by each affected individual shall be subtracted from the base figure of 128 hours to arrive at the amount of overtime that each employee was not allowed to work due to the early cessation of the detail.

A. Positions of the Parties

The Agency opposes Proposal 3 because it believes that the Union is "asking the [Agency] to agree to an untruth." Statement of Position at 26. The Agency admits that although "this is the type of argument that cannot be raised in a negotiability appeal, the instant negotiability appeal would have to be dismissed with respect to this proposal for that reason, since we have no other basis for opposing it." Id. The Agency asserts that Proposal 4 "is so interconnected with the other proposals that it cannot stand on its own. The agency has no separate basis for asserting that it has no obligation to bargain with respect to it." Id. at 27.

The Union asserts that the Agency does not raise a nonnegotiability claim with respect to Proposals 3 and 4. The Union argues that because the Agency has not demonstrated that Proposals 3 and 4 violate applicable law, rule or regulation, they are negotiable.

B. Analysis and Conclusions

The Agency declared that Proposals 3 and 4 are nonnegotiable. Statement of Position at 26-27. The Agency has not demonstrated, however, and it is not otherwise apparent to us, that the proposals are inconsistent with law, rule or regulation. The parties bear the burden of creating a record on which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. See, for example, National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 717-718 (1990).

The Agency has failed to provide a record to support its allegations that Proposals 3 and 4 are nonnegotiable. Accordingly, we conclude that Proposals 3 and 4 are within the duty to bargain.

VII. Proposals 5 and 6

5. The Agency shall offer overtime to the aforementioned employees on a priority basis, as close to their duty station as practicable, and on the same scheduled shift that the employee is assigned to work, unless otherwise requested by the employee. Any travel associated with this overtime will be paid at the overtime rate, and government transportation will be provided.

6. The Agency shall be obligated to offer all affected employees at least twice the amount of overtime due that employee under Section 4 of this agreement, except that once the employee has worked an amount of overtime totalling said amount, the Agency's obligation ends. Additionally, if an employee fails to take advantage of the overtime offered under the above conditions, the Agency's obligation would also terminate, absent a showing of good cause to the contrary by the employee. Periods of leave will not count against the employee for this purpose.

A. Positions of the Parties

The Agency contends that Proposals 5 and 6 interfere with management's rights under section 7106(a)(2)(A) and (B) and section 7106(b)(1) to assign work, to assign employees and to determine the numbers, types and grades of employees assigned to a work project or an organizational subdivision. The Agency claims, in particular, that these proposals interfere with its right to determine the qualifications of employees to whom to assign overtime work. According to the Agency, not all employees are qualified to perform all overtime assignments.

The Agency also argues that Proposal 5 "is for the employee's benefit, not to enhance the efficiency of the service, and would allow the employee to pick and choose for personal reasons where he will perform the assignment." Statement of Position at 29. The Agency argues that this proposal would allow an employee to turn down an overtime assignment at his duty station to take one elsewhere for personal reasons and, thus, would prevent management from ordering the employee to remain available at his normal duty station. The Agency asserts further that Proposal 5 violates section 7106(b)(1) because it could require "the assignment of overtime to an employee who is stationed in another subdivision tha[n] the [subdivision] where the assignment is to be performed [.]" Id. at 30.

The Agency acknowledges that the proposals "were intended to be arrangements for employees affected by the exercise by management of its right to assign work." Id. at 17. However, the Agency argues that all the employees involved may not have been adversely affected because they may not have worked the amount of overtime claimed by the Union.

The Union notes that overtime was mandatory and scheduled on the McAllen detail and, therefore, employees whose details were cut short lost varying amounts of overtime. The Union claims that Proposals 5 and 6 would provide employees with opportunities to work overtime to make up for that which was lost by the early termination of their details.

The Union contends that although Proposal 5 would require the Agency to offer overtime on a priority basis to the employees whose details were shortened, that priority does not require the Agency "to offer overtime assignments to employees who are unqualified to perform the overtime duty according to the qualifications determined by the [Agency]." Reply Brief at 22. The Union also argues that the proposal does not require the Agency "to offer overtime in any amount at any time or during any period of time." Id.

The Union contends that Proposal 6 seeks only to make employees whole for overtime work that they lost because of the shortened McAllen detail. The Union asserts that in providing for priority consideration for up to double the amount of overtime that affected employees lost, the Union "is expressly recognizing that the [Agency] can determine job qualifications, relative qualifications among employees, and which employees meet and do not meet the [Agency's] mission-based work needs in terms of place and time needed work is performed." Id. at 23.

B. Analysis and Conclusions

The right to assign work includes the right to determine the particular qualifications and skills needed to perform the work and to make judgments as to whether a particular employee meets those qualifications. See, for example, National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 513, 519 (1990). The right to assign work encompasses work which is performed on overtime. 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, 1040-42 (1988) (Provision 13), reversed as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989).

The Authority has also held that proposals prescribing the criteria governing the distribution of overtime assignments do not infringe on management's right to assign work provided they do not interfere with management's ability to determine the qualifications necessary to perform the work. See, for example, American Federation of Government Employees, AFL-CIO, Local 1770 and Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina, 28 FLRA 493, 497 (1987) (Provision 2, section 4) (Fort Bragg) (provision that overtime opportunities be offered equitably to all qualified employees within the trade or occupation within an organizational element held to be negotiable because it only concerned which unit employees already assigned certain work would be selected to perform the same work on overtime when overtime was required).

In our view, Proposals 5 and 6 do not interfere with any management rights under sections 7106(a)(2)(A) and (B) or section 7106(b)(1) of the Statute. In reaching our conclusion, we adopt the Union's interpretation that the proposals would only allow employees, who lost the opportunity to work overtime because the McAllen detail was terminated early, a chance to make up the lost overtime. We find nothing in either proposal that would require the Agency to offer overtime assignments to unqualified employees. Further, we see nothing in the wording of either Proposal 5 or 6 that would permit an employee to refuse to perform an overtime assignment in any circumstances. Therefore, contrary to the Agency's arguments, we find nothing in the proposals that would interfere with the rights to determine the qualifications and skills needed to perform work and to assign employees. We find, instead, that Proposals 5 and 6 prescribe the method of scheduling the distribution of overtime and, therefore, pursuant to the Authority rationale in Fort Bragg, are negotiable.

VIII. Order

The Agency shall, upon request or as otherwise agreed to by the parties, bargain on Proposals 1, 2, 3, 4, 5 and 6.(4)




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The record is not clear as to the date on which employees were detailed to McAllen or how many days of the details were served by those employees.

2. In order to be considered certifiable for selection to a higher grade under the Immigration and Naturalization Service Merit Promotion and Reassignment Plan (the Plan), Border Patrol Officers must earn a specific number of rating points. Rating points are given for, among other things, the