40:1181(104)NG - - NFFE Local 1214 and Army, Health Services Command, Moncrief Army Community Hospital, Fort Jackson, SC - - 1991 FLRAdec NG - - v40 p1181



[ v40 p1181 ]
40:1181(104)NG
The decision of the Authority follows:


40 FLRA No. 104

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1214

(Union)

and

DEPARTMENT OF THE ARMY

HEALTH SERVICES COMMAND

MONCRIEF ARMY COMMUNITY HOSPITAL

FORT JACKSON, SOUTH CAROLINA

(Agency)

0-NG-1590

DECISION AND ORDER ON NEGOTIABILITY ISSUES

May 31, 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 under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of six proposals concerning the Agency's implementation of National Registry of Emergency Medical Technicians (NREMT) certification for emergency medical technicians (EMTs).(1)

For the reasons stated below, we find the following: Proposal 1, which requires that the requirements for NREMT basic and paramedic certification be implemented in FY 1996 instead of September 1989, is not a negotiable procedure and excessively interferes with management's rights to assign employees and work and is therefore nonnegotiable.

Section 2 of Proposal 2, which requires that the Agency make arrangements for employees to take the practical examination for NREMT basic certification twice annually starting in FY 1995, is a negotiable appropriate arrangement. Section 5 of Proposal 2, which requires that the Agency pay any expense associated with the practical examination, is not negotiable because it is inconsistent with Federal law.

The portion of Proposal 3 that is in dispute, which requires that the Agency pay all inherent costs of the examinations for NREMT basic certification, is inconsistent with Federal law and therefore nonnegotiable.

Proposal 5, which requires that no personnel actions will be initiated against an emergency medical technician until after the employee has taken the examinations for NREMT paramedic certification five times and failed to achieve certification, is not a negotiable procedure and excessively interferes with management's right to assign employees and is therefore nonnegotiable.

Proposal 6, which requires that if the Agency alleges that any of the Union's proposals are nonnegotiable under section 7117(a)(2), it will not implement NREMT certification until a negotiability determination on the matter is made by the Authority, is a negotiable procedure.

II. Untimely Union Response

We conclude that the Union's response to the Agency's statement of position was untimely. Section 2424.7(a) of the Authority's Rules and Regulations provides that any response to an agency's statement of position regarding a negotiability appeal must be filed within 15 days after receipt of the statement of position. The facts indicate that the Union received the Agency's statement of position on October 17, 1988. Thus, the filing deadline for the Union's response was November 1, 1988.

Section 2429.21(b) of the Authority's Rules and Regulations provides that the date of filing shall be determined by the date of mailing indicated by the postmark date. If no postmark date is evident, it shall be presumed to have been mailed 5 days prior to receipt. The Union mailed its response, which was received on November 14, 1988. As the postmark on the envelope was illegible, we determine that the Union's response was filed on November 9, 1988, and is therefore untimely. The Union made no motion for an extension of time for filing its response and has shown no good cause for such an extension, as required by section 2429.23 of the Rules and Regulations. Accordingly, we have not considered the Union's response except insofar as it contains a withdrawal of portions of the Union's appeal. See note 1 above.

III. Background

This case concerns certification requirements for technicians and hospital corpsmen in the Emergency Medical Technician-Ambulance (EMT-A) classification.(2) The Highway Safety Act of 1987, 23 U.S.C. § 402 (1988), requires that State highway safety programs be in accordance with uniform guidelines concerning emergency services promulgated by the Secretary of Transportation. Highway Safety Program Guideline No. 11, "Emergency Medical Services," requires the establishment of "a program to ensure that persons involved in highway accidents receive prompt emergency medical care under the range of emergency conditions encountered." 23 C.F.R. § 1204.4, Guideline 11. Guideline No. 11 also requires that, at a minimum, programs should provide training, licensing, and related requirements for ambulance and rescue vehicle operators, attendants, drivers, and dispatchers.

The Highway Safety Program Guidelines, "to the extent determined appropriate by the Secretary [of Transportation], [are] applicable to federally administered areas where a Federal department or agency controls the highways or supervises traffic operations." 23 U.S.C. § 402(a). The Secretary of Transportation has determined that "[p]ursuant to 23 U.S.C. 402, the highway safety program [guidelines] set forth in [23 C.F.R. Chapter II] are applicable to Federal departments and agencies that control highways open to public travel within federally administered areas or supervise traffic operations on such highways, to the extent that they engage in activities covered by the highway safety program [guidelines][.]" 23 C.F.R. § 1230.3.

The Agency states that 23 C.F.R. § 1230.3 requires Federal departments and agencies that engage in covered activities to develop their own program requirements and does not authorize States to impose on Federal departments and agencies the program requirements that they develop for State personnel. Agency's Statement of Position, Enclosure 2. On September 18, 1986, the Department of Defense (DoD) issued an agency regulation entitled "Emergency Medical Services" (DoD Directive 6000.10), which established policy, procedures, and responsibilities for the administration and management of emergency medical services in DoD medical treatment facilities. Agency's Statement of Position, Enclosure 4. The Directive requires that emergency medical service technicians or hospital corpsmen "have a minimum of Emergency Medical Technician-Ambulance (EMT-A) current certification from the National Registry for Emergency Medical Technicians (NREMT). EMT-Intermediate or EMT-Paramedic current certification as defined by the NREMT . . . also may fulfill this requirement." Id., Enclosure 4 at 2. The Directive also requires that the EMT-A personnel be certified by the NREMT before September 18, 1989.

In a memorandum dated April 29, 1988, the Agency notified the Union that, in accordance with Army Regulation 40-66 dated April 1, 1987, and Army Letter 40-87-6 dated June 25, 1987, all EMTs must be NREMT-certified by September 18, 1989.

Prior to 1970, there was no national certifying organization that could attest to the proficiency of ambulance personnel. The NREMT is a not-for-profit, independent, nongovernmental organization formed in June 1970 to develop uniform standards for personnel and training. The NREMT establishes work experience, training, and examination requirements necessary for EMT basic and paramedic certifications. The NREMT requires that individuals applying for EMT basic certification must be at least 18 years of age and meet certain training and experience criteria to be eligible to take the practical and written examinations. The NREMT has established two classifications for the EMT basic certification: EMT-Ambulance and EMT-Nonambulance. The record does not indicate the requirements for EMT paramedic certification. NREMT reregistration occurs every 2 years upon completion and verification of required continuing education and the payment of a fee. See Agency's Statement of Position, Enclosure 3.

IV. Negotiable Procedures and Appropriate Arrangements

In its petition for review, the Union states generally that the purpose of the proposals is to negotiate "on procedures and appropriate arrangements for employees pursuant to the implementation and impact of NREMT [certification]." Petition for Review at 3. We construe the Union's statement as an assertion that the disputed proposals are negotiable procedures or that the proposals are intended to ameliorate the possible adverse effect of job loss that could result from employees not obtaining NREMT certification. Therefore, we will apply to the proposals the analysis that we use for determining whether a proposal constitutes a negotiable procedure under section 7106(b)(2), see American Federation of Government Employees, Local 2879 and U.S. Department of Health and Human Services, Social Security Administration, Chula Vista District, San Diego, California, 38 FLRA 244, 248 (1990) (SSA, San Diego), or an appropriate arrangement under section 7106(b)(3), see National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard).

V. Proposal 1 (Implementation Date)

NFFE-L1214 proposes to implement both EMT (basic) and EMT (paramedic) NREMT certification requirements starting in FY 1996.

A. Positions of the Parties

The Agency contends that Proposal 1 is inconsistent with management's rights to assign work, to remove and select employees, and to determine qualifications under section 7106(a)(2)(A), (B) and (C) of the Statute. In this regard, the Agency contends that Proposal 1 is not a procedure within the meaning of section 7106(b)(2) because it prevents the Agency from acting at all, citing U.S. Customs Service, Washington, D.C. v. FLRA, 854 F.2d 1414, 1419 (D.C. Cir. 1988) (Customs Service). The Agency argues that the proposal prohibits it from implementing NREMT certification for an additional 7 years. The Agency refutes the Union's statement that the proposal is necessary because the NREMT certification examinations are provided only once a year and that it would take employees an average of four attempts to achieve NREMT paramedic certification. The Agency also contends that Proposal 1 is inconsistent with Federal law (23 U.S.C. § 402(a)), a Government-wide regulation (23 C.F.R. §§ 1204.4, 1230.4(a)), and an Agency regulation for which there is a compelling need (DoD Directive 6000.10). Finally, the Agency contends that the portion concerning EMT paramedic certification is moot because DoD Directive 6000.10 does not require EMT paramedic certification, citing American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 32 FLRA 210 (1988) (VA, Leavenworth).

The Union contends that implementation of NREMT certification on September 18, 1989, would disqualify all currently employed EMTs, none of whom are currently required to be certified by NREMT. The Union notes that the Agency did not notify the Union about the new requirement until about April 29, 1988--almost 2 years after DoD issued Directive 6000.10--and that it would take employees an average of four attempts to pass the annual examinations for NREMT paramedic certification.

B. Analysis and Conclusions

We conclude that Proposal 1 is nonnegotiable. We find that Proposal 1 (1) directly interferes with management's rights to assign employees and work under section 7106(a)(2)(A) and (B); (2) is not a negotiable procedure under section 7106(b)(2); and (3) does not constitute an appropriate arrangement under section 7106(b)(3).

1. Proposal 1 Is Not Moot

The Agency contends that the portion of Proposal 1 concerning NREMT paramedic certification is moot because, as DoD Directive 6000.10 does not address NREMT paramedic certification, that part of the proposal has no possible application. We believe that the Agency's reliance on VA, Leavenworth is misplaced. In VA, Leavenworth, the Authority found that the dispute as to five proposals concerning the prospective implementation of reassignments was rendered moot because the reassignments had already been implemented. 32 FLRA at 211-12. Unlike the proposals in VA, Leavenworth, Proposal 1 does not concern a matter that has already occurred but, rather, the prospective implementation of certification requirements. As it is clear that the agency intends to impose basic certification requirements and it is possible that the Agency could impose requirements for paramedic certification before FY 1996, it cannot be said that the proposal is moot because it refers to paramedic as well as basic certification. We note in this regard that the Agency originally solicited proposals concerning paramedics. Union's Statement of Intent, Exh. 3. Accordingly, we will address the negotiability of Proposal 1.

2. Proposal 1 Directly Interferes with the Rights to Assign Employees and Work

Proposal 1 concerns the implementation of certification requirements for EMTs. It would have the effect of delaying the implementation of NREMT basic and paramedic certification from September 1989 to FY 1996 (October 1, 1995 - September 30, 1996).

Under section 7106 of the Statute, agencies retain the right to determine the requirements of the work of a position and the qualifications, skills, and job-related individual characteristics needed to do the work. This authority is encompassed in the rights to assign employees and work under section 7106(a)(2)(A) and (B). National Federation of Federal Employees, Local 738 and Department of the Army, Headquarters, USA Medical Department Activity, Fort Leonard Wood, Missouri, 34 FLRA 809, 812 (1990) (Army, Fort Leonard Wood). Further, an agency's right to determine personnel requirements is not limited to qualifications specifically set forth in OPM's qualifications standards. Id. (citing American Federation of Government Employees, Local 2663 and Veterans Administration Medical Center, Kansas City, Missouri, 31 FLRA 988 (1988) (VA, Kansas City)).

The Department of Defense, after considering what programs were available to suit the needs of the military service, determined that NREMT certification would fulfill all training and licensing requirements set forth in 23 C.F.R. § 1204.4, Guideline 11. Agency's Statement of Position at 8. Possession of the NREMT certificate became the Agency's minimum qualification standard for positions involving emergency medical services. We find that the Agency's requirement that EMTs be certified by NREMT constitutes a determination of a personnel requirement or qualification for an EMT position. Because the proposal would prevent the Agency from implementing NREMT certification until FY 1996, 9 years after DoD required NREMT certification for all EMTs, the proposal would interfere with management's rights to establish this new qualification standard and thereby to assign employees and to assign work for that entire period. We conclude that, in the circumstances of this case, such a delay constitutes direct interference with management's rights under section 7106(a)(2)(A) and (B). See Army, Fort Leonard Wood, 34 FLRA at 813 (proposal that registration with the NREMT be on a voluntary basis found to directly interfere with management's rights to assign employees and work) (citing Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 804-06 (1987) (Overseas Education) (Proposal 53), enforced as to other matters by en banc order sub nom. Department of Defense Dependents Schools v. FLRA, No. 87-1735 (D.C. Cir. June 22, 1990).

3. Proposal 1 Is Not a Negotiable Procedure

Proposals that directly interfere with the substantive exercise of a management right are not negotiable as procedures under section 7106(b)(2). SSA, San Diego, 38 FLRA at 248 (citing Department of Defense v. FLRA, 659 F.2d 1140, 1151-52 (D.C. Cir. 1981), cert. denied 455 U.S. 945 (1982)). We conclude that, in the circumstances of this case, a requirement that the Agency delay action on the certification of its employees for an additional 6 years after the September 18, 1989, deadline originally set by the Agency's September 1986 directive has a substantive effect on the Agency's exercise of its rights under section 7106(a). Accordingly, we conclude that Proposal 1 does not constitute a negotiable procedure under section 7106(b)(2) of the Statute.

4. Proposal 1 Is Not an Appropriate Arrangement

To determine whether Proposal 1 constitutes an appropriate arrangement, we must decide whether the proposal is (1) intended to be an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's rights. SSA, San Diego, 38 FLRA at 248 (citing Kansas Army National Guard).

More particularly, in determining, as a threshold matter, whether a proposal is an arrangement for adversely affected employees, we examine "the effects or foreseeable effects which flow from the exercise of" management's rights, "and how those effects are adverse." SSA, San Diego, 38 FLRA at 249 (quoting Kansas Army National Guard, 21 FLRA at 31 and citing National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 841 (1990) (Naval Facilities Engineering Command)). Proposals that address "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. See Naval Facilities Engineering Command, 36 FLRA at 841. However, where an adverse effect is reasonably foreseeable, and the proposal at issue is intended to be an arrangement for those employees adversely affected, we will consider whether the proposal excessively interferes with management's rights. SSA, San Diego, 38 FLRA at 249.

Proposal 1 is intended to minimize the adverse effects on currently employed EMTs resulting from the implementation of NREMT certification. We note that the Agency did not notify the Union concerning the NREMT certification requirement until over a year and a half after the issuance of DoD Directive 6000.10. Consequently, the EMTs had less than 17 months to obtain their NREMT certification. The Union states that implementation of NREMT certification would disqualify all of the currently employed EMTs. Although the Union was relying on statistics concerning the paramedic certification, a reasonably foreseeable consequence of implementing NREMT certification is the possible job loss for those employees who do not obtain NREMT certification before the Agency's new certification requirement is implemented. Proposal 1 militates against that possibility by giving employees until FY 1996 to obtain NREMT certification. We find that the Union was concerned that employees may be adversely affected by the implementation of the NREMT certification requirement and that Proposal 1 is designed to ameliorate those adverse effects. Accordingly, we conclude that Proposal 1 is an arrangement for employees adversely affected by the exercise of management's rights to assign employees and work within the meaning of section 7106(b)(3) of the Statute.

To determine whether a proposal is an "appropriate" arrangement because it does not excessively interfere with the exercise of a management right, we weigh "the competing practical needs of employees and managers" to determine whether the benefit to employees afforded by the proposal outweighs the burden placed by the proposal on the exercise of the management right or rights involved. Kansas Army National Guard, 21 FLRA at 31-32. The question, therefore, is whether the burden imposed on the exercise of management's rights by Proposal 1 is excessive when weighed against the benefit the proposal affords employees.

As the Union states, the detrimental effect on employees of the NREMT certification requirement could be disqualification. The Agency agrees, stating that "[e]mployees who are not properly certified [by September 18, 1989] do not meet the agency qualification standard and must be removed from their positions." Agency's Statement of Position at 7. Thus, the nature and extent of the reasonably foreseeable effect on employees of not obtaining NREMT certification could be severe. The Union admits that its statistics regarding the average number of attempts to pass certification are based on NREMT paramedic certification, however, and it has supplied no comparable figures for the EMT basic certification that is at issue here. Accordingly, the effect on employees may in fact be far less severe than anticipated.

The Agency's decision to require NREMT certification in 1989 was based on its judgment of what certification requirements would best meet its operational needs. Proposal 1 would negate the Agency's ability to implement NREMT certification as a requirement or qualification for EMTs until FY 1996. During that period, the Agency would be unable to replace EMTs whom it believed to be unqualified based on their inability to obtain NREMT certification. In order to have a sufficient number of qualified employees, the Agency might be required to hire additional NREMT-certified employees. We note that the Agency had already delayed the new certification requirement for 3 years. We conclude that, on balance, the proposal's negative effect on management's right to determine the qualifications necessary for the EMT positions outweighs the benefit of allowing such employees until FY 1996 to obtain NREMT certification. Consequently, we conclude that Proposal 1 excessively interferes with management's rights to assign employees and work and therefore is not an appropriate arrangement. Compare Overseas Education, 29 FLRA at 806-07 (Proposal 54, which permitted teachers a minimum of 6 years to meet changed recertification requirements, found negotiable as an appropriate arrangement where agency failed to show period of time was unreasonable and agency's regulations allowed teachers 6 years to meet certain recertification requirements) with Army, Fort Leonard Wood, 34 FLRA at 814 (proposal that registration with the NREMT be on a voluntary basis found to be nonnegotiable because it excessively interfered with management's rights to assign employees and work).

Based on the foregoing, we conclude that Proposal 1 is nonnegotiable. In view of this conclusion, it is not necessary to reach the Agency's other arguments concerning whether Proposal 1 is inconsistent with Federal law (23 U.S.C. § 402(a)); or conflicts with a Government-wide regulation (23 C.F.R. §§ 1204.4, 1230.4(a); or whether there is a compelling need for DoD Directive 6000.10.

VI. Proposal 2 (EMT (Basic) Practical Examination)

Inasmuch as NREMT certification for EMT (basic) candidates require[s] successful completion, within a 12-month period prior to the submission of an acceptable application, [of] all sections of the South Carolina (State-approved) Basic EMT practical examination that equals or exceeds the established criteria of the NREMT certification, NFFE-L1214 proposes the following:

1. That Moncrief Army Community Hospital (MACH), Fort Jackson, make appropriate arrangements with the State of South Carolina to have it's [sic] EMT (basic) candidates be provided the practical examination (portion) of the South Carolina EMT Certification Test.

2. That such testing be given at least twice annually starting in FY 1995.

3. That such testing be provided during normal duty hours.

4. That any candidate not otherwise in a duty status, be considered in a duty status for purposes of taking this examination.

5. Any expense associated with such an examination be borne by [Moncrief Army Community Hospital].

6. That the practical examination as provided by the State of South Carolina, equal or exceed the requirements promulgated by NREMT for certification.

[Only the underscored portions are in dispute.]

A. Positions of the Parties

The Agency contends that section 2 of Proposal 2 interferes with management's right to assign work because it requires the Agency to assemble employees and administer a test to them a certain number of times a year. It also argues that training in the required skill areas is an integral part of the certification process, and that, therefore, the proposal requires it to provide job-related training, which the Authority has consistently held to be outside the duty to bargain. Among other cases, the Agency cites American Federation of Government Employees, AFL-CIO, Local 1625 and U.S. Navy Fleet Combat Training Center, Atlantic, Dam Neck, Virginia Beach, Virginia, 28 FLRA 1134 (1987). It also claims that it could not always give the test twice a year because, under NREMT rules, at least eight individuals must take the test on a given date, and the Agency has no control over the number of candidates who may be eligible. The Agency also contends that section 2 is inconsistent with section 7117(a)(2) of the Statute because the FY 1995 implementation date for the practical examination is contrary to DoD Directive 6000.10, which states that NREMT certification must be implemented by September 18, 1989. Finally, the Agency asserts that section 5 of Proposal 2 conflicts with decisions of the Comptroller General, citing 61 Comp. Gen. 357 (1982) and 55 Comp. Gen. 759 (1976).

The Union maintains that the practical examination can be given twice a year and that the Agency should pay for the examination because the Agency is imposing it on EMTs and the examination is more expensive than current state requirements.

B. Analysis and Conclusions

We conclude that section 2 of Proposal 2 is negotiable as an appropriate arrangement under section 7106(b)(3). We also find that section 5 of Proposal 2 is nonnegotiable because it is inconsistent with Federal law.

1. Section 2 of Proposal 2 Directly Interferes with the Right to Assign Work

Management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what position the duties will be assigned. National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 399 (1990) (NOAA) (citing American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 32 FLRA 210, 216 (1988)).

Proposal 2 concerns when and how often the Agency would have to make arrangements with the State of South Carolina to provide the practical examination of the South Carolina EMT Certification Test for EMTs. The proposal requires the Agency to arrange for employees to take the practical examination twice a year starting in FY 1995 (October 1, 1994 - September 30, 1995). Section 3 of Proposal 2, which is not in dispute, makes it clear that these examinations would be given during normal duty hours. We find that the proposal places conditions upon management's ability to assign work by directing the Agency to provide eligible employees the opportunity to take the practical examination during normal duty hours twice annually after October 1, 1994. During the examination periods, the Agency would not be able to assign any other work to those employees. The Authority has held that such restrictions constitute a direct interference with the right to assign work. See National Association of Government Employees and Veterans Administration, Veterans Administration Medical Center, Brockton/West Roxbury, Massachusetts, 37 FLRA 263, 270-71 (1990) (proposal requiring agency to assign specific duties and precluding agency from assigning others directly interferes with management's right to assign work). Accordingly, we conclude that section 2 of Proposal 2 directly interferes with management's right to assign work.

In finding that this portion of Proposal 2 directly interferes with management's right to assign work, we also conclude that it does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. As we discussed in connection with Proposal 1, proposals that directly interfere with the substantive exercise of a management right are not negotiable as procedures under section 7106(b)(2).

In reaching this conclusion, however, we do not agree with the Agency that this portion of Proposal 2 would require it to give additional training in the required skill areas to eligible employees before the additional practical examinations could be given. Nothing on the face of the proposal requires the Agency to give any additional training. Presumably, the Agency will give some form of training in the skill areas before the regularly scheduled certification examinations. We see no reason why this proposal would affect the timing of any training that the Agency would already be planning to give to employees who are eligible for NREMT certification.

We also do not agree that a requirement to begin semi-annual testing in FY 1995 conflicts with any directives or regulations mandating NREMT certification within a specific time frame, as argued by the Agency. A requirement that the Agency give additional certification tests after FY 1995 has no bearing at all on its ability to require NREMT certification for all of its employees at any date prior to FY 1995. For this reason, we also conclude that the proposal does not conflict with DoD Directive 6000.10 insofar as that directive requires that NREMT certification be implemented by September 18, 1989.

2. Section 2 of Proposal 2 Is an Appropriate Arrangement

As we discussed in conjunction with Proposal 1, to determine whether a proposal constitutes an appropriate arrangement, we must apply the analysis set forth in Kansas Army National Guard.

Section 2 of Proposal 2 is intended to minimize the adverse effects on currently employed EMTs resulting from the implementation of NREMT certification. The Union states that "the NREMT requirements are in fact an imposition on our EMTs; requirements which may well prove fatal to their continued employment as EMTs[.]" Union's Statement of Intent at 3. As we stated in connection with Proposal 1, a reasonably foreseeable consequence of implementing NREMT certification is the possible job loss for those employees who do not obtain NREMT certification within the required time period. Section 2 of Proposal 2 militates against that possibility by providing employees the opportunity to take the practical examination twice annually starting in FY 1995. We find that it is reasonably foreseeable that employees may be adversely affected by the implementation of NREMT certification and that these adverse effects would be greater if the various portions of the certification examination were given only once a year or less frequently. We conclude that section 2 of Proposal 2 is designed to ameliorate those adverse effects by providing additional opportunities to be tested. Accordingly, we conclude that section 2 is an arrangement for employees adversely affected by the exercise of management's right to assign work within the meaning of section 7106(b)(3).

To determine whether the arrangement is appropriate, we must decide whether the burden imposed on the exercise of management's rights by section 2 of Proposal 2 is excessive when weighed against the benefit it affords employees. As we discussed above, the detrimental effect of NREMT certification on employees could be their disqualification as EMTs and the possible loss of jobs. The administration of the practical examination twice a year would increase their opportunities to pass the test and retain their jobs. Thus, the benefits to the employees of the proposal would be significant.

On the other hand, the burden on the Agency of giving, or arranging to have a third party give, additional practical examinations would not be severe. Further, the interference with management's right to assign work to those taking the examination would, at most, occur two days a year and, therefore, would not be substantial. We do not view as a relevant consideration the Agency's assertion that NREMT rules require that at least eight to ten candidates must take the practical examination on a given date, and its argument that because it "has no control over the number of candidates who may be eligible to take the test, it is not possible to agree to a proposal that establishes a regular test schedule." Agency's Statement of Position at 10. We note in this regard that the proposal does not require the Agency itself to give the examination, which emanates from the State of South Carolina. Nor does the proposal set a date certain on which the test must be administered. Thus, if there are an insufficient number of eligible employees within the bargaining unit when the time approaches for a semi-annual examination, the Agency could seek cooperation from other nearby facilities employing EMTs, or perhaps from the State, to arrange mutually agreeable testing dates and/or locations so that eight to ten candidates from several facilities could take the practical examination. Thus, in our view, the requirement that two practical examinations be provided annually starting in FY 1995 would not impose a substantial burden on the Agency. Finally, the Agency could obtain significant benefits from more frequent testing, which might permit it to establish earlier which EMTs have the skills and abilities to effectively perform emergency medical services and, conversely, to identify more quickly those employees who could not obtain NREMT certification and who might have to be replaced.

We conclude that, on balance, the proposal's benefit to EMTs of providing them with two opportunities annually to take the practical examination for NREMT basic certification outweighs the effect on management's right to assign work. Consequently, we find that section 2 of Proposal 2 does not excessively interfere with management's right to assign work and, therefore, is an appropriate arrangement. See Overseas Education Association and Department of Defense Dependents Schools, 39 FLRA 153, 180-81 (1991) (proposal which required additional preparation time to perform work required by additional duties found to be an appropriate arrangement).

3. Section 5 of Proposal 2 Is Inconsistent with Federal Law

The Government Employees Training Act (5 U.S.C. §§ 4101-4118) (Training Act) is the legal basis for the use of appropriated funds to train government employees. National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA 508, 509 (1981). "Training," as defined in the Training Act, does not include (1) an examination which is not an integral part of a course of instruction or (2) an examination process which is not designed to impart knowledge and skills to examinees. American Federation of Government Employees, AFL-CIO, Local 3529 and Defense Contract Audit Agency, Chicago, Illinois, 15 FLRA 403, 404 (1984). If an examination is not within the meaning of "training" under the Training Act, there is no authorization for reimbursement of costs related to the examination. Id. at 405 (citing 55 Comp. Gen. 759, 760-61 (1976)). In addition, the Comptroller General, in interpreting the Training Act, has determined that employees must bear the costs of qualifying for the performance of their official duties and, if a personal license is necessary, employees must procure it even if the condition is established after the employees are hired. 61 Comp. Gen. 357, 359 (1982) and Comp. Gen. No. B-218964 (Nov. 26, 1985) (unpublished) (citing 51 Comp. Gen. 701, 702 (1972) and 46 Comp. Gen. 695 (1967)).

Section 5 of Proposal 2 would require the Agency to pay any expenses associated with the practical examination EMTs must take to obtain the NREMT certification. The Agency has determined that the NREMT certification is necessary for EMTs to be qualified to perform their official duties. Thus, section 5 of Proposal 2 is inconsistent with Federal law because it concerns expenses for an examination that is necessary for employees to qualify to perform their official duties.

Because we have found that section 5 of Proposal 2 is nonnegotiable because it is inconsistent with Federal law, we need not reach the question of whether it constitutes a negotiable procedure under section 7106(b)(2) or an appropriate arrangement under 7106(b)(3). Sections 7106(b)(2) and 7106(b)(3) apply only when management exercises one of the reserved rights set out elsewhere in section 7106. See, for example, National Association of Government Employees Local R1-109 and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut, 37 FLRA 500, 511 (1990) (citing American Federation of Government Employees, Local 1546 and Department of the Army, Sharpe Army Depot, Lathrop, California, 25 FLRA 958, 961 (1987)).

VII. Proposal 3 (NREMT-EMT (Basic) Examination)

Starting in FY 1996, Moncrief Army Community Hospital (MACH) will provide the NREMT-EMT (basic) written examination twice annually as proscribed/prescribed by NREMT criteria. Such examination will be administered at MACH during normal duty hours.

NREMT (basic) candidates will be provided with the dates, times, and place(s) of such examinations ninety (90) days in advance of scheduled examinations.

NREMT (basic) candidates who are not in a duty status during the period of examination, will be considered in a duty status for purposes of participating in the NREMT (basic) examinations, and/or preparing for such examination.

MACH will provide all necessary training pursuant to the proscribed/prescribed requirements inherent with NREMT (basic) certification. Training will be provided while in a duty status.

Each NREMT (basic) candidate will be provided five (5) opportunities to pass the NREMT (basic) certification examinations prior to any personnel action being taken to remove the candidate.

All inherent cost of such examinations will be borne by MACH.

[Only the underscored portion is in dispute.]

A. Positions of the Parties

In its allegation of nonnegotiability, the Agency asserted that the 1996 commencement date is nonnegotiable because it conflicts with DoD Directive No. 6000.10 and Department of the Army regulations that mandate NREMT certification within certain time frames. The Agency contends that the sixth part of Proposal 3 is nonnegotiable because the expenses are personal in nature, citing Comp. Gen. No. B-218964 (Nov. 26, 1985) (unpublished) and Comp. Gen. No. B-210522(3) (Dec. 15, 1983) (unpublished).

The Union's position with regard to the starting date is the same as stated in Proposal 1. The Union does not state its position with regard to the sixth part of Proposal 3.

B. Analysis and Conclusions

For the reasons stated above with regard to section 2 of Proposal 2, we do not find the inclusion of a starting date of FY 1996 to render Proposal 3 nonnegotiable. We conclude, however, that the remaining portion of Proposal 3 that is still in dispute is nonnegotiable because it is inconsistent with Federal law under section 7117(a)(1) of the Statute.

The sixth part of Proposal 3 would require the Agency to pay all costs of the NREMT examinations that EMTs must take to obtain the NREMT basic certification. The Agency has determined that NREMT certification is necessary for EMTs to be qualified to perform their official duties. Thus, the sixth part of Proposal 3, section 5 of Proposal 2, is inconsistent with Federal law because it concerns expenses for examinations which are necessary for employees to qualify to perform their official duties. Accordingly, EMTs must bear the costs related to such examinations.

Because we have found that the disputed portion of Proposal 3 is nonnegotiable because it is inconsistent with Federal law, we need not reach the question of whether it constitutes a negotiable procedure under section 7106(b)(2) or an appropriate arrangement under 7106(b)(3).

VIII. Proposal 5 (NREMT-EMT (Paramedic) Examinations)

Each candidate will be provided five (5) opportunities to pass such examinations for NREMT (paramedic) certification. No personnel actions shall be initiated against any candidate until after the candidate has taken the examinations five times and failed to acheive [sic] certification.

[Only the underscored portion is in dispute.]

A. Positions of the Parties

The Agency contends that Proposal 5 is inconsistent with management's right to suspend, remove, reduce in grade or pay, or take other kinds of disciplinary actions under section 7106(a)(2)(A) of the Statute citing, among other cases, National Treasury Employees Union and Internal Revenue Service, 6 FLRA 522, 522-24 (1981). The Agency also asserts that Proposal 5 imposes a condition on management's exercise of its rights to hire, assign, direct, suspend, remove, reduce in grade or pay, or take other disciplinary actions by requiring that an employee first fail the examinations for NREMT paramedic certification five times before any personnel action can be initiated, citing Colorado Nurses Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA 803, 818-20 (1987). Finally, the Agency contends that, for the reasons stated with regard to Proposal 1, Proposal 5 would prevent the implementation of NREMT certification on September 18, 1989.

The Union contends that Proposal 5 is based on its understanding that it takes an employee an average of four attempts to achieve NREMT certification.

B. Analysis and Conclusions

We conclude that Proposal 5 is nonnegotiable. We find that Proposal 5 (1) directly interferes with management's rights under section 7106(a)(2)(A) to assign employees and to remove employees or to reduce their grade or pay; (2) is not a negotiable procedure under section 7106(b)(2); and (3) does not constitute an appropriate arrangement under section 7106(b)(3).

1. Proposal 5 Directly Interferes with the Right to Assign Employees

The right to assign an employee to a position includes the discretion to determine what practices management will use to decide whether an employee has the qualifications and skills needed to do the work. See Army, Fort Leonard Wood, 34 FLRA at 814 (proposal that registration with the NREMT be on a voluntary basis found to be nonnegotiable because it excessively interfered with management's rights to assign employees and work). Requiring an agency to allow an employee a certain number of chances to pass a training course being taken to acquire the skills and qualifications necessary to perform assigned work directly interferes with management's right to assign employees. See VA, Kansas City, 31 FLRA at 988-89 (proposal requiring employees to have two more chances to pass required training interferes with right to assign employees).

Proposal 5 would require the Agency to provide an employee five opportunities to pass the NREMT paramedic certification examinations prior to taking any personnel actions against the employee. Thus, Proposal 5, like the proposal in VA, Kansas City, would directly interfere with management's right to assign employees.

2. Proposal 5 Directly Interferes with the Rights to Remove or Reduce in Grade or Pay

Proposals which place a restriction on management's rights to remove, reduce in grade or pay, or take other disciplinary action against employees who have demonstrated an inability or unwillingness to perform the duties of their positions at an acceptable level directly interfere with those rights and do not constitute a negotiable procedure. National Labor Relations Board Union and National Labor Relations Board, Office of the General Counsel, 18 FLRA 320, 323-24 (1985). See American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Immigration and Naturalization Service, 27 FLRA 467, 482 (1987) (proposal, which required the agency to reassign employees who were unable to perform acceptably in a new position after being given a reasonable period of time to attain satisfactory performance, was not a negotiable procedure and excessively interfered with management rights under section 7106(a)(2)(A)).

The Agency argues that Proposal 5 places a condition upon management's exercise of its rights to remove or reduce in grade or pay. We agree. Proposal 5 would preclude the Agency from initiating any personnel actions, such as reassignment, removal, or reduction in grade or pay, until an EMT had taken the examinations for NREMT paramedic certifications five times. Thus, Proposal 5 directly interferes with management's rights under section 7106(a)(2)(A) to remove, reduce in grade or pay, or to otherwise discipline its employees.

In finding that Proposal 5 directly interferes with management's rights to assign, remove, reduce in grade or pay or to otherwise discipline employees, we also conclude that it does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. As we discussed in connection with Proposal 1, proposals that directly interfere with the substantive exercise of a management right are not negotiable as procedures under section 7106(b)(2).

3. Proposal 5 Is Not an Appropriate Arrangement

Proposal 5 is intended to minimize the adverse effects on currently employed EMTs resulting from any implementation of NREMT certification for paramedics. As the Union contended in Proposal 1, the implementation of NREMT certification could disqualify all of the currently employed EMTs. Based on the Union's arguments that, on average, it takes a paramedic four attempts to pass the certification examination, disqualification would be an even greater concern if paramedic certification were implemented. Therefore, as we stated in conjunction with Proposal 1, a reasonably foreseeable consequence of implementing the requirement of NREMT certification is the possible job loss for those employees who do not obtain NREMT certification. Proposal 5 seeks to ameliorate that adverse effect by preventing the initiation of personnel actions against any candidate until the candidate has taken the NREMT examinations five times and failed to achieve NREMT certification. Accordingly, we conclude that Proposal 5 is an arrangement for employees adversely affected by the exercise of management's rights under section 7106(a)(2)(A) of the Statute.

In determining whether the proposal is appropriate, we note the Union's concern that, on average, it takes four attempts to achieve certification. Providing an examination to an employee five times and staying any personnel actions against the employee during that period would, therefore, enable most of the current employees to stay in their positions. Accordingly, the benefits to the affected employees would be substantial.

On the other hand, Proposal 5 would prohibit management from exercising its authority to take any disciplinary actions until an employee failed the examinations five times. Moreover, Proposal 5 would prevent the implementation of NREMT certification for the entire unit until each employee had been given five opportunities to pass the certification test. We note that the Agency does not contest the Union's claim that, on average, it takes four attempts to achieve certification. Therefore, requiring the Agency to delay any personnel actions based on noncertification could, if the certification examination were given only once a year, delay full implementation of NREMT certification for five or more years. For the reasons stated above with regard to Proposal 1, such a delay would have a substantial effect on the Agency's right to assign employees. Similarly, we conclude that it would substantially impair the Agency's right to remove or otherwise take personnel actions against employees who could not meet its qualifications.

Therefore, we conclude that, on balance, the proposal's negative effect on (1) management's right to remove, reduce in grade or pay, or to otherwise discipline EMTs who fail to meet the NREMT certification requirement, and (2) management's right to assign employees by determining qualifications outweighs the benefit to such employees of delaying any personnel actions against them until an employee has failed the examinations five times. See Army, Fort Leonard Wood, 34 FLRA at 814 and VA, Kansas City, 31 FLRA at 988-89. Consequently, we find that Proposal 5 excessively interferes with management's rights to remove, reduce in grade or pay or to take other disciplinary action against its employees as well as its right to assign employees and therefore is not an appropriate arrangement. See SSA, San Diego, 38 FLRA at 249; Kansas Army National Guard, 21 FLRA at 31-32.

IX. Proposal 6 (Nonnegotiability)

In the event that Moncrief Army Community Hospital (MACH) alleges non-negotiability of any of the Union's (NFFE-L1214) proposals on the basis of an 'Agency rule and/or regulation' pursuant to 5 USC 7117(a)(2), no implementation of any part of the NREMT will take place until negotiability determination(s) are made by the Federal Labor Relations Authority (FLRA). NFFE-L1214 will move promptly to request such determination(s).

[Only the underscored portion is in dispute.]

A. Positions of the Parties

The Agency contends that Proposal 6 does not concern a negotiable procedure because it prohibits implementation of DoD Directive 6000.10. The Agency argues that Proposal 6 has the same effect as Proposal 1 and cites Customs Service in support of its position.

The Union contends that Proposal 6 would not interfere with the Agency's mission and would ensure that EMTs were treated fairly.

B. Analysis and Conclusions

We conclude that Proposal 6 is a negotiable procedure within the meaning of section 7106(b)(2).

With certain specific exceptions, an agency may not implement changes in conditions of employment of unit employees, without the agreement of the union that represents those employees. NOAA, 37 FLRA at 396. Therefore, the Authority has long held that proposals that require an agency to maintain the status quo during the bargaining process, consistent with its obligation to bargain, are negotiable procedures under 7106(b)(2) of the Statute. Id. at 396.

The bargaining process includes the resolution of negotiability appeals through the procedures of the Authority. Overseas Education, 29 FLRA at 741. Therefore, proposals that require the maintenance of the status quo until a negotiability determination has been made are negotiable as procedures. Id. at 739-42 (a proposal stating that "[t]he proposed change(s) shall not be implemented during bargaining, during impasse if a party has invoked impasse resolution procedures, or pending the decision of a negotiability appeal unless a compelling need exists." was found to be a negotiable procedure under the Statute). In Overseas Education, the Authority stressed that such a proposal does not prevent the agency from implementing changes once a determination has been made that the agency has no bargaining obligation with regard to that proposal. Id. at 741. See also International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA 1500, 1504 (1991) (Proposal 1, which required a delay in implementing agency's drug testing program until parties reached a satisfactory resolution of negotiations, including utilization of FMCS/FSIP, found to be a restatement of agency's statutory duty to bargain concerning procedures to be followed and appropriate arrangements for employees adversely affected by the proposed change).

Similarly, Proposal 6 requires the Agency only to maintain the status quo until a negotiability determination is made by the Authority under section 7117(a)(2) of the Statute if the Agency alleges a compelling need for an Agency's rule or regulation. The proposal is simply a procedure concerning the implementation of NREMT certification that applies only if the Agency alleges that there is a compelling need for its regulation and endures only until the determination regarding that allegation is made. Contrary to the Agency's arguments, the proposal would not prohibit the Agency from implementing its regulation, does not impair management's right to determine the implementation of NREMT certification, as does Proposal 1, and does not have the same effect as the proposal in Customs Service. Rather, unlike the proposal in Customs Service, which required the agency to withhold implementation of a program pending a study by the union of the impact of the program on unit employees, Proposal 6 requires the Agency only to satisfy the bargaining obligations it has undertaken under the Statute before implementing NREMT certification. Accordingly, we conclude that Proposal 6 is a negotiable procedure under section 7106(b)(2) of the Statute.

X. Order

The Agency must bargain, upon request or as otherwise agreed to by the parties, over section 2 of Proposal 2 and Proposal 6.(4)

We dismiss the petition as to Proposal 1, section 5 of Proposal 2, Proposal 3, and Proposal 5.




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

1. In the Union's response, which we find below to be untimely and have not considered as to the negotiability of the proposals, the Union indicates that part of Proposal 3 and all of Proposal 4 are "moot." In view of the fact that the Union presents no further arguments