44:0683(55)NG - - Federal Employees Metal Trades Council of Charleston and Navy, Charleston Naval Shipyard, Charleston, SC - - 1992 FLRAdec NG - - v44 p683



[ v44 p683 ]
44:0683(55)NG
The decision of the Authority follows:


44 FLRA No. 55

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

FEDERAL EMPLOYEES METAL TRADES COUNCIL

OF CHARLESTON

(Union)

and

U.S. DEPARTMENT OF THE NAVY

CHARLESTON NAVAL SHIPYARD

CHARLESTON, SOUTH CAROLINA

(Agency)

0-NG-1812

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 27, 1992

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)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of six proposals that were submitted during impact and implementation bargaining over revised position descriptions pertaining to the performance of nuclear and non-nuclear work.(1)

Proposal 1, among other things, would require the Agency to minimally qualify employees for positions in a nuclear program, based on seniority or a past determination of qualifications, prior to implementing a proposed change in job descriptions. We find that the proposal is nonnegotiable because it directly and excessively interferes with the Agency's right to assign employees under section 7106(a)(2)(A) of the Statute.

Proposals 2 and 4 would essentially define a competitive level, within a competitive area, to include employees who are assigned to both nuclear and non-nuclear functions. We conclude that the proposals are nonnegotiable because they directly and excessively interfere with the Agency's rights to assign employees under section 7106(a)(2)(A) of the Statute and to select under section 7106(a)(2)(C) of the Statute.

Proposal 3 would require the Agency to notify and consider bargaining unit employees for unit positions in the nuclear program before soliciting non-bargaining unit employees and to select bargaining unit employees, based on seniority, if bargaining unit employees are equally qualified with other bargaining unit employees or non-bargaining unit employees. We conclude that the proposal directly and excessively interferes with the Agency's right to select under section 7106(a)(2)(C) of the Statute.

II. Procedural Matter and Background

The Agency filed a supplemental submission urging the Authority to disregard Union arguments contained in the response to the Agency's statement of position that had not been raised in the petition for review. Specifically, the Agency claims that the Union did not expressly assert in its petition that its proposals constitute negotiable procedures or appropriate arrangements under sections 7106(b)(2) and 7106(b)(3) of the Statute. The Agency adds that if the assertions made in the response are deemed adequate and timely, the proposals are neither negotiable procedures nor appropriate arrangements for reasons that are set forth in its supplemental submission.

We find no merit to the Agency's contention. In our view, the Union's assertions were properly raised. We will, however, consider the arguments raised by the Agency in its supplemental submission in order to provide a more complete record on which to base our negotiability determinations. See American Federation of Government Employees, Council 257, AFL-CIO, National Association of Government Inspectors and Quality Assurance Personnel, Local 4004, Naval Aviation Depot, Pensacola, Florida and Department of the Navy, Naval Aviation Depot, Pensacola, Florida, 30 FLRA 1144 (1988) (Authority granted agency's request to file supplemental submission to address union arguments, raised in reply brief, that proposals constituted appropriate arrangements).

As noted, the Union's proposals were submitted during the course of impact and implementation bargaining concerning revised position descriptions for employees engaged in the performance of either nuclear functions or non-nuclear functions. As explained in an enclosure to the Agency's supplemental submission, the Department of the Navy authorized the establishment of position descriptions for naval shipyard production workers who perform work in the Naval Nuclear Propulsion Program and who meet certain criteria. In addition, authorization was provided for the establishment of separate competitive levels to differentiate, where appropriate, between nuclear workers and non-nuclear workers in various production trades.

III. Proposal 1

Prior to implementing the proposed change in job descriptions, management will minimally qualify all employees who are more senior than the least senior employee currently in the nuclear program, in accordance with FPM 351. Those employees who have previously been fully nuclear qualified will have satisfied the requirement of minimal qualification. Any subsequent training to full nuclear status shall also be done in accordance with seniority as outlined in FPM 351. Those employees who decline to be assigned to the nuclear program will sign a letter that designates this and explains that their decision may affect their retention in the future.

A. Positions of the Parties

1. Agency

The Agency contends that the proposal is nonnegotiable because it interferes with management's rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

With regard to the right to assign employees, the Agency argues that it has the right to establish the skills and qualifications necessary to perform work. By requiring non-nuclear employees to receive specific training and to qualify such employees for positions in the nuclear program based on seniority, the Agency maintains that the proposal deprives the Agency of its authority to determine which employees are capable of performing the work. The Agency adds that "[t]he plain wording of the proposal is that management will 'qualify' for nuclear work any non-nuclear employee who possesses seniority." Statement of Position at 3.

The Agency also asserts that the proposal interferes with its right to assign work because the proposal requires the Agency to provide training. The Agency cites several Authority decisions for the proposition that proposals requiring training to enable employees to qualify for other positions or to enhance skills interfere with the right to assign work under section 7106(a)(2)(B).

In is supplemental submission, the Agency asserts that the proposal is not a negotiable procedure under section 7106(b)(2) of the Statute because it would substantively interfere with the exercise of management's rights to assign employees and to assign work. The Agency argues that the determination as to whether employees are qualified to perform the duties of a particular position is integral to the right to assign employees.

The Agency also maintains that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute because it would excessively interfere with the exercise of its management rights. The Agency claims that a requirement to qualify employees for positions in the nuclear program based on seniority would deprive the Agency of its authority to make determinations as to which employees are qualified to perform nuclear work. Also, the Agency asserts that the Union's explanation of the meaning of the proposal, as preserving management's discretion to fill positions with qualified employees, is in conflict with the plain wording of the proposal that "management will minimally qualify" all employees. The Agency distinguishes this proposal from a situation in which an agency may be required to fill positions with qualified employees whose jobs have been eliminated. The Agency states that the basic issue here is whether employees are qualified to perform the duties attendant to nuclear work.

2. Union

The Union states that the proposal is designed to provide employees with an opportunity for assignment to the nuclear program. The Union explains that the development of new job descriptions will give employees who are assigned to nuclear work different retention rights. The Union adds that the proposal will minimally qualify for nuclear positions those employees who have a higher retention standing on the current retention register than employees presently in the nuclear program with lower retention standings. The Union also explains that employees previously deemed fully qualified will have satisfied the minimum requirement, that all training will be conducted using the method outlined in the proposal, and that employees have a right to decline entry into the nuclear program.

The Union also contends that the proposal constitutes a negotiable procedure under section 7106(b)(2) of the Statute in that it sets forth the steps to be followed prior to implementing the proposed change in job descriptions. The Union adds that neither the intent of the proposal nor its plain meaning would preclude the Agency from exercising its discretion to assign employees or assign work. The Union maintains that the proposal does not require management to fill positions with unqualified employees but, rather, to attempt to fill positions through the reassignment of qualified employees whose positions have been eliminated. The Union argues that the Agency only has to minimally qualify those employees whose seniority rights otherwise would be adversely affected and who do not decline assignment to the nuclear program. As such, the Union asserts that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute for employees whose seniority rights would be adversely affected by the change in job descriptions.

B. Analysis and Conclusions

1. The Proposal Directly Interferes with Management's Right to Assign Employees

Proposal 1 would require the Agency to take various actions to qualify employees for positions in the nuclear program. For the following reasons, we conclude that the proposal directly interferes with the Agency's right to assign employees.

The right to assign employees under section 7106(a)(2)(A) of the Statute includes the right to determine the qualifications and skills needed to perform the work of a position, including job-related individual characteristics such as judgment and reliability. Proposals that prevent an agency from determining the qualifications of a position directly interfere with the right to assign employees. See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 41 FLRA 618, 622 (1991), and cases cited therein.

As a threshold matter, prior to the implementation of the proposed changes in job descriptions, Proposal 1 would require the Agency to minimally qualify employees, that is, to determine that employees posess the minimal qualifications necessary to perform nuclear work, based on seniority. The proposal would operate to minimally qualify employees not presently assigned to the nuclear program who possess greater seniority than the least senior employee presently in the nuclear program. The proposal further provides that employees who previously have been fully nuclear qualified will be deemed to have satisfied the requirement of minimal qualification. We find that the requirement to minimally qualify based on seniority or past qualification would directly interfere with the Agency's right to determine whether the employees currently possess the qualifications and skills necessary to perform nuclear work. That is, using either seniority or a past determination of qualifications as the sole criterion for assessing employees' present ability to perform nuclear work would prevent the Agency from determining whether each employee has the current qualifications to perform such work.

We reject the Union's contention that the proposal would require the Agency simply "to attempt to fill vacant positions through the reassignment of qualified employees whose positions have been eliminated[,]" and would not require the Agency to fill positions with unqualified employees. Response at 10. The plain language of the proposal says nothing about permitting the Agency to determine the qualifications of employees. Rather, the proposal expressly provides that the Agency will minimally qualify employees based on seniority. We do not base a negotiability determination on a union's statement of intent where that statement is inconsistent with the plain wording of a proposal. See for example, International Federation of Professional and Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31, 35 (1990). Therefore, our determination that the proposal directly interferes with the Agency's right to assign employees is based on the language of the proposal.

The proposal's reference to "FPM 351," which the Union does not explain, does not warrant a different result. Federal Personnel Manual (FPM) Supplement 351-1 governs reduction in force (RIF). Proposal 1 does not specifically address RIF but, even if it did, we find nothing in the FPM provision that requires agencies to qualify employees for positions based on seniority. Indeed, subchapter S1-3 states that, in order to minimize the need for a RIF, agencies may reassign employees or allow employees to voluntarily reduce their grade levels. In conjunction with these actions, agencies may waive minimum qualification requirements if the agency determines that an employee has the capacity, adaptability, and special skills needed to perform the duties of the position. See also 5 C.F.R. § 351.703 (agencies may assign employees in RIF situations without regard to the standards and qualifications established for the positions by the Office of Personnel Management if: (1) the affected employee meets minimum education requirements for the position; and (2) the agency determines that the employee "has the capacity, adaptability, and special skills needed to satisfactorily perform the duties and responsibilities of the position."). As we stated above, the proposal here would not allow the Agency to assess whether employees possess the requisite skills and qualifications necessary to perform the work attendant to nuclear positions. Consequently, we conclude that the proposal directly interferes with the Agency's right to assign employees.

In light of this conclusion, we need not discuss further the remaining portions of the proposal. Those portions address actions that are either contingent upon or relate to the requirement that employees be minimally qualified for nuclear positions. As we have found that that requirement directly interferes with the Agency's right to assign employees, and as the remaining portions of the proposal rely on that requirement and have not been asserted or shown to have any independent viability, we conclude that Proposal 1 directly interferes with management's right in its entirety.

We also find that the proposal does not constitute a negotiable procedure as claimed by the Union. The Authority has held that proposals that directly interfere with the exercise of a management right do not constitute negotiable procedures under section 7106(b)(2) of the Statute. 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); American Federation of Government Employees, Council 214 and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 34 FLRA 977, 984 (1990). As Proposal 1 directly interferes with the exercise of management's right to assign employees, we conclude that it does not constitute a negotiable procedure under section 7106(b)(2) of the Statute.

2. The Proposal Is Not a Negotiable Appropriate Arrangement

Finally, we find that the proposal does not constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. In determining whether a proposal constitutes a negotiable appropriate arrangement, the Authority first determines whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right. If the Authority determines that the proposal is an arrangement, the Authority then determines whether the arrangement is appropriate, or whether it is inappropriate because it excessively interferes with management's right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (Kansas Army National Guard).

The Union claims that the development of separate job descriptions for nuclear work may lead to separate competitive levels for nuclear and non-nuclear work. The Union asserts that, as a consequence, employees' retention standings will be affected and there may be adverse effects on the employees' seniority rights. The Union also states that the proposal would allow the Agency to fill positions with employees whose positions have been eliminated. As so explained, we find that the proposal is intended as an arrangement. However, after balancing the competing interests of the employees and the Agency, we conclude that the proposal would excessively interfere with the exercise of management's right to assign employees.

As noted earlier, the proposal would require the Agency to consider employees minimally qualified based on seniority or a past determination without making a determination that the employees currently possess the requisite qualifications to enable them to perform nuclear work. The requirement that employees be considered minimally qualified to perform work in the manner specified in the proposal is absolute and permits no exception where employees do not have the capacity to perform that type of work or do not have the particular skills that are needed. On the other hand, employees who are considered qualified to perform nuclear work may derive some benefit if separate competitive levels are established and non-nuclear positions are eliminated. While it is impossible to assess the precise effect such actions might have on employees, we recognize that the employees' retention standings or seniority rights might be affected. However, we conclude that the effect on the Agency's ability to assign employees is significant and outweighs any benefits that would inure to employees.

In reaching this conclusion, we find that Proposal 1 is clearly distinguishable from a proposal at issue in American Federation of Government Employees, Local 2024 and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249, 253-58 (1990) (Portsmouth Naval Shipyard). In that case, we found negotiable as an appropriate arrangement a proposal that required an agency, to the extent possible, to minimize displacement actions by, among other things, waiving qualifications and standards for employees affected by a RIF or other actions. We concluded, based on the union's statement of intent, that the proposal was "subject to normal management considerations such as making qualifications determinations . . . ." Id. at 257. By contrast, the proposal here does not allow for management to make the necessary qualifications determinations to ensure that employees are capable of performing nuclear work. Also, the proposal is not limited to situations involving RIFS or other actions that were present in Portsmouth Naval Shipyard. Rather, the proposal would operate prior to the implementation of the change in job descriptions.

In sum, we conclude that Proposal 1 is nonnegotiable because it excessively interferes with the Agency's right to assign employees. In view of this conclusion, we need not address the Agency's additional contention.

IV. Proposals 2 and 4

Proposal 2

For the purpose of a RIF, Management will not differentiate between Nuclear and Non-nuclear.

Proposal 4

The parties recognize that those positions assigned to nuclear functions and those assigned to non-nuclear functions are in the same grade level and classification series and are similar enough in duties, qualification requirements, pay schedules and working conditions that they should be placed within the same competitive level for purposes of retention and RIF. These positions shall remain within the same competitive level unless there is some significant change, reasonably articulated and demonstrated by management, that would require the establishment of separate competitive levels. Should this occur, Management will give the Union at least sixty days notice of the change prior to establishing separate competitive levels.

A. Positions of the Parties

1. Agency

The Agency contends that Proposals 2 and 4 are nonnegotiable because they interfere with the Agency's rights to assign employees, select, assign work, determine the personnel by which Agency operations are conducted, and determine internal security practices.

First, the Agency argues that both proposals interfere with management's right to establish separate competitive levels for nuclear and non-nuclear positions, and that the proposals thereby interfere with management's right to assign employees under section 7106(a)(2)(A) of the Statute. The Agency asserts that Proposal 2 would completely prevent any differentiation between nuclear and non-nuclear positions during a RIF, and that Proposal 4 would allow assignment to different competitive levels only where the Agency could articulate and demonstrate the necessity for separate competitive levels. The Agency argues that under FPM Supplement 351, subchapter 3-3, it has the authority to establish competitive levels for purposes of a RIF. The Agency further argues that under 5 C.F.R. § 351.403, there are certain requirements that must be met in determining what positions may be encompassed within a competitive level.(2) The Agency asserts that nuclear and non-nuclear positions are not interchangeable and that employees lacking training and actual experience in nuclear positions cannot perform successfully the critical elements of nuclear positions.

In further support of its contention that the proposals interfere with management's right to assign employees, the Agency argues that the proposals deprive the Agency of its authority to determine whether the skills, knowledge and abilities associated with one position are sufficiently like other positions so that an employee in that position is qualified to perform the duties of the other positions. Citing various proposals in American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), the Agency contends that the right to make such determinations is integral to the right to assign employees under 7106(a)(2)(A) of the Statute.

The Agency also contends that the proposals interfere with management's right to select under section 7106(a)(2)(C) by injecting the Union into the process of deciding which employees are best suited to perform particular types of work. The Agency relies on Authority decisions which it argues stand for the proposition that the right to select includes the right to determine the knowledge, skills and abilities needed to perform the work of a position and that proposals defining a competitive level directly interfere with the right to select.

The Agency further asserts that Proposals 2 and 4 interfere with its rights to assign work and determine the personnel by which Agency operations are conducted under section 7106(a)(2)(B) of the Statute. The Agency maintains that nuclear and non-nuclear positions are not interchangeable and that by requiring employees to be placed in the same competitive level, the Agency would be precluded from making various work assignments. The Agency also argues that by designating the types of employees who are qualified to perform nuclear work, the proposals interfere with the Agency's right to determine the personnel by which Agency operations are conducted.

The Agency also maintains that Proposals 2 and 4 are nonnegotiable because they interfere with the Agency's right to determine internal security practices under section 7106(a)(1) of the Statute. The Agency states that it "places great emphasis upon ensuring that only personnel with specialized training and of unquestioned reliability and integrity perform . . . duties[]" in the nuclear program. Statement of Position at 12. The Agency further states that "[n]uclear work is highly sensitive and the determination of who performs such work has obvious safety implications." Id. at 13. The Agency argues that by preventing it from deciding which employees have the characteristics necessary to perform nuclear work, the proposals have the potential for undermining safety.

In its supplemental submission, the Agency argues that the proposals do not constitute negotiable procedures because they are "a usurpation of management's rights." Agency's Supplemental Submission at 8. The Agency asserts that Proposal 2 would bar it from distinguishing between nuclear and non-nuclear employees and that Proposal 4 would act as a direct constraint on the Agency's exercise of its management rights.

The Agency further contends that the Union's reliance on a vitally affects test set forth in American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 FLRA 335 (1988) (AFGE, Local 32), is irrelevant because the Agency did not assert that the effect of the proposals on non-unit employees was a bar to negotiations. The Agency also argues that the Union's reliance on AFGE, Local 32 is inapposite because that case dealt with competitive areas, rather than competitive levels, which are involved here.

Next, the Agency contends that the decision of the Merit Systems Protection Board (MSPB) in Kira v. Department of the Navy, slip op. No. SEO3518710241-42 (1987), cited by the Union, is not dispositive of the issue. The Agency asserts that it has not and does not contend that every nuclear position necessitates placement in a different competitive level from every non-nuclear position. However, the Agency argues that there are nuclear positions that need to be placed in separate competitive levels and that the Agency has the right, under internal Agency guidance and provisions contained in the FPM, to determine which positions belong in separate competitive levels.

Finally, the Agency contends that the Union has not provided any basis on which to find that the proposals constitute appropriate arrangements under section 7106(b)(3) of the Statute. Alternatively, the Agency argues that the proposals excessively interfere with the exercise of management's rights to assign and select employees with the requisite capabilities, qualifications and training to perform highly specialized nuclear work. The Agency asserts that proposals, such as Proposals 2 and 4, that completely negate the exercise of management rights do not constitute appropriate arrangements under section 7106(b)(3) of the Statute.

2. Union

In its petition for review, the Union contends that, for purposes of a RIF, Proposal 2 was designed to maintain the status quo with respect to competitive levels. The Union notes that, in the past, employees had been placed in the same competitive level without regard to whether they were in the nuclear program. The Union maintains that the proposal does not affect the Agency's ability to establish separate classifications or determine the number or types of positions that will be terminated. The Union also states that the proposal reflects an understanding that "an employee filing [sic] one position may fulfill the duties of the other position without loss of productivity beyond that normally expected to orientate the employee." Petition for Review at 2.

With respect to Proposal 4, the Union states that the proposal is a recognition that there is no need to require that employees be placed in different competitive levels based solely on whether they are assigned to nuclear or non-nuclear positions. The Union notes, however, that the Agency can establish separate competitive levels where there is a basis for doing so and the Union is properly notified.

In its reply brief, the Union states that the proposals constitute negotiable procedures or appropriate arrangements. Additionally, citing AFGE, Local 32, and other decisions, the Union argues that proposals defining the area in which bargaining unit employees must compete for job retention are negotiable because they vitally affect unit employees. The Union asserts that Proposals 2 and 4 affect vital interests of employees because they concern whether bargaining unit employees will retain their jobs in the event of a RIF.

Next, the Union asserts that the issue as to whether the Agency should distinguish between nuclear and non-nuclear positions for the purpose of determining appropriate competitive levels was resolved by the MSPB in Kira v. Department of the Navy. The Union notes that the MSPB sustained the Agency's determination that there was interchangeability between machinists in the nuclear and non-nuclear programs and that one combined competitive level was appropriate. The Union argues that Proposals 2 and 4 merely identify the competitive level already established by the Agency and upheld by MSPB. The Union argues that if the Agency decides to change the competitive level, Proposal 4 simply requires the Agency to explain the reason for the change and provide the Union with notice so that the Union can provide input.

Finally, the Union disputes the Agency's contention that the proposals interfere with the Agency's right to determine its internal security practices. The Union states that many non-nuclear employees possess the same level of security clearance as nuclear employees and that placing nuclear and non-nuclear employees in the same competitive level would not undermine the Agency's control of its internal security practices.

B. Analysis and Conclusions

Proposals 2 and 4 directly and excessively interfere with the Agency's rights to assign and select employees under sections 7106(a)(2)(A) and 7106(a)(2)(C) of the Statute and are nonnegotiable.

Proposal 2 sets forth the requirement that during a RIF management will not differentiate between employees who do nuclear work and employees who do non-nuclear work. As explained by the Union, this proposal is designed to keep nuclear and non-nuclear employees in the same competitive level. Although the proposal does not specifically refer to competitive levels, the Union's statement of intent is consistent with the language of the proposal. Therefore, for purposes of our decision, we will construe the proposal as requiring that nuclear and non-nuclear employees remain in the same competitive level. Proposal 4 provides more explicitly that positions assigned to nuclear and non-nuclear functions that are in the same grade level and classification series and are similar in duties, qualifications, pay schedules and working conditions will be placed in the same competitive level for purposes of retention and RIF. Proposal 4 further allows for separate competitive levels if the Agency can establish a basis for doing so and the Union is notified prior to the change to separate competitive levels.

Previously, in Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306, 318-20 (1987) (Congressional Research Employees Association), the Authority found nonnegotiable a proposal that would have required all positions in the same or related series and grade to be placed in the same competitive level. The Authority found that the proposal directly and excessively interfered with management's rights to assign employees under section 7106(a)(2)(A) and to make selections for positions under section 7106(a)(2)(C) of the Statute. More specifically, the Authority held that the decision as to which positions are placed in a competitive level requires a determination that the duties of a position require similar skills, knowledge and abilities, and that the employee in one position is qualified to perform the duties of the other position. The Authority held that such a determination implicates management's rights to assign employees under section 7106(a)(2)(A) of the Statute and to select employees for appointments to positions under section 7106(a)(2)(C). Finally, in finding that the proposal did not constitute a negotiable appropriate arrangement, the Authority concluded that "[t]he placement of employees into positions for which they are not qualified could severely hamper the [a]gency's ability to effectively conduct its day-to-day operations following a RIF[,]" and, therefore, that the burdens imposed on the exercise of the agency's rights outweighed the benefits to affected employees. Id. at 320.

We reach the same conclusions here. Proposal 2, as we have construed it, would require the Agency to keep nuclear and non-nuclear employees in the same competitive level. Such a requirement would prevent the Agency from determining whether, in fact, the duties of the respective positions are similar enough in terms of skills, knowledge and abilities to enable the employees to perform the duties of each position so that a single competitive level is appropriate. As such, the proposal directly and excessively interferes with the Agency's rights to assign and select employees.

Proposal 4, although worded differently, leads to the same result. To an extent, Proposal 4 contains some of the same requirements governing the establishment of competitive levels that are set forth in 5 C.F.R. § 351.403. However, the proposal is not consistent with those regulatory requirements.(3) The cited provision requires agencies to establish competitive levels consisting of positions that are similar enough, in terms of certain enumerated criteria, that "the incumbent of one position could successfully perform the critical elements of any other position upon entry into it, without any loss of productivity beyond that normally expected in the orientation of any new but fully qualified employee." 5 C.F.R. § 351.403(a). By requiring that the Agency place positions assigned to both nuclear and non-nuclear functions in the same competitive level, unless the Agency can demonstrate that a significant change has occurred, the proposal would prevent the Agency from making the necessary determinations that employees in each job classification can successfully perform the duties of the other job classification within the meaning of the applicable regulation. Although the Union explains that the proposal reflects an understanding that employees filling one position may perform the duties of the other position without any loss of productivity beyond that expected to orient the employee, we are not persuaded that this explanation comports with applicable regulatory requirements. The cited regulatory provision assumes that an employee is "fully qualified" to perform the critical elements of a position on entry into that position. In our view, the proposal would not permit the Agency to make the necessary determination that employees assigned to non-nuclear functions are fully qualified to perform nuclear functions.

Additionally, we find that because the Agency would be prevented from determining that employees in nuclear and non-nuclear job classifications possess the necessary qualifications to perform the duties in each job classification, Proposal 4 is distinguishable from a proposal found negotiable in National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566, 588-89 (1988), rev'd as to other matters sub nom. Nuclear Regulatory Commission v. FLRA, 895 F.2d 152 (4th Cir. 1990). In that case, the proposal preserved the Agency's right to make the requisite determinations with respect to the skills, knowledge and abilities of the positions such that the employees could perform the duties of the respective positions. By contrast, the proposal here, which requires the Agency to recognize that employees in nuclear and non-nuclear functions are sufficiently similar generally to warrant placement in the same competitive level, does not permit the type of determination of qualifications that agencies are required to make.

Although the Union argues that Proposals 2 and 4 constitute negotiable appropriate arrangements, we find, as the Authority did in Congressional Research Employees Association, that placing employees into positions for which they may not be qualified presents a significant intrusion on the Agency's ability to assign and select employees. Such a burden imposed on the exercise of management's rights outweighs any benefits inuring to employees under the proposals. Consequently, we conclude that Proposals 2 and 4 do not constitute negotiable appropriate arrangements. Additionally, because the proposals directly interfere with the exercise of management's rights, we find, as we did with Proposal 1, that Proposals 2 and 4 do not constitute negotiable procedures under section 7106(b)(2) of the Statute.

We reject the Union's assertion that the decision in Kira v. Department of the Navy stands for the proposition that the Agency already has determined that nuclear and non-nuclear employees may be placed in the same competitive level. That case, which was a decision of an MSPB administrative judge, involved a claim by two former machinists that a RIF had been improperly conducted and that, because of their work on nuclear powered vessels, the employees should have been in a separate competitive level. The claimants noted, in support, that there were separate competitive levels for other positions based on nuclear and non-nuclear work. The administrative judge rejected the claim and found that under 5 C.F.R. § 351.403(a), the agency had determined that a single competitive level was appropriate, noting the interchangeability between machinists who work on nuclear vessels and those who work on non-nuclear powered vessels. As we stated above, in exercising its rights to assign and select employees, the Agency has the authority to decide which positions are properly included in a particular competitive level. The decision in Kira v. Department of the Navy supports this finding and does not indicate that management would make the same determination that a single competitive level is appropriate for the employees covered by these proposals.

Additionally, we find no merit to the Union's reliance on AFGE, Local 32 and to the Union's argument that the proposal is negotiable because it vitally affects bargaining unit employees. Where, as here, it is uncontested that a proposal relates to conditions of employment of bargaining unit employees, the negotiability of a proposal does not turn on whether it vitally affects unit employees' conditions of employment. Rather, the question is whether the proposal is consistent with law, rule, and regulation, including the Statute. Where a determination is made, such as in this case, that a proposal directly and excessively interferes with the exercise of management's rights, the proposal is nonnegotiable. Although there is no basis on which to apply a vitally affects test in this case, the parties may wish to consult the Authority's decision in National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 44 FLRA No. 3 (1992), for a discussion of the present application of the vitally affects test.

In sum, we conclude that Proposals 2 and 4 directly and excessively interfere with management's rights to assign and select employees under section 7106(a)(2)(A) and (C) of the Statute. Under these circumstances, we need not address the Agency's additional contentions that the proposals interfere with other management rights.

V. Proposal 3

Management will give at least ten (10) calendar days notice to the employees in the bargaining unit of a vacant position, also in the bargaining unit, within the Nuclear program. Employees will be given the opportunity to apply and to be considered at least ten (ten) [sic] calendar days prior to the solicitation of applications from non-bargaining unit employees. If management determine [sic] that bargaining unit employees are equally qualified to perform the tasks in the nuclear program either with other bargaining unit employee [sic] or non-bargaining unit employees, when filling the position management shall select from qualified bargaining unit employees in accordance with their seniority (most senior by SCD first offered the position) and shall select from qualified bargaining unit employee [sic] prior to offering the position to non-bargaining unit employees.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 3 is nonnegotiable because it interferes with the right to select under section 7106(a)(2)(C) of the Statute. The Agency argues that the proposal would require a 10-day delay before soliciting applications from non-bargaining unit employees and would mandate the selection of a bargaining unit employee, based on seniority, where bargaining unit employees are equally qualified with non-bargaining unit employees. The Agency argues that the proposal is distinguishable from National Treasury Employees Union and Department of the Treasury, 24 FLRA 494 (1986) aff'd sub nom. Department of the Treasury v. FLRA 837 F.2d 1163 (D.C. Cir. 1988) (Department of the Treasury), in which the Authority found negotiable a proposal that did not limit the Agency's right to select but simply required that bargaining unit employees be considered for positions before non-bargaining unit employees. The Agency maintains that, by contrast, the proposal here would bar selection of non-bargaining unit employees where unit employees are equally qualified. The Agency also notes that in Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 857 F.2d 819, 822 (D.C. Cir. 1988) (Department of the Treasury, BATF), the court reversed the Authority's decision in National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 26 FLRA 497 (1987) (BATF), that found negotiable a proposal that would have required the agency to rank and consider employees before soliciting outside candidates. The Agency maintains that Proposal 3 similarly is nonnegotiable.

In its supplemental submission, the Agency argues that the proposal does not constitute a negotiable procedure because it places a substantive limitation on management's right to select. The Agency also states that the proposal is essentially the same as a proposal the Authority found was not a negotiable procedure in National Association of Government Employees, Local R5-165 and Tennessee Air National Guard, 35 FLRA 886 (1990) (Tennessee Air National Guard).

The Agency also argues that Proposal 3 is not an appropriate arrangement under section 7106(b)(3) because it is not intended to address the adverse effects of an Agency action. Rather, the Agency argues that the proposal provides an advantage to bargaining unit employees in competing for vacant positions. The Agency states that in American Federation of Government Employees, Local 3296 and National Guard Bureau, Alaska National Guard, 33 FLRA 99, 102-04 (1988), the Authority did not address whether a provision that would have prevented the expansion of an area of consideration constituted an appropriate arrangement because the union failed to demonstrate how the agency's selection action would adversely affect bargaining unit employees. The Agency argues that the Union here has failed to establish how the proposal is intended to be an appropriate arrangement.

2. Union

The Union states that Proposal 3 constitutes a negotiable procedure under section 7106(b)(2) of the Statute or an appropriate arrangement under section 7106(b)(3) of the Statute. More specifically, the Union maintains that the proposal is intended to give bargaining unit employees: (1) notice that a nuclear position is available; and (2) the opportunity to apply and be considered for such positions "prior to any selection being made outside the bargaining unit and, if equally qualified, to be selected in order of seniority and prior to non-bargaining unit employees." Petition for Review at 3. The Union asserts that Proposal 3 establishes a process for the Agency to follow before filling positions. The Union further states that "[u]nder the plain meaning of the proposal, management's consideration of applicants is not restricted to only bargaining unit employees, nor does the proposal compel management to employ criteria that are not job related in choosing from among initial groups of candidates." Response at 11. The Union maintains that management would retain ultimate control over hiring decisions and that the proposal does not set forth any particular criteria by which applicants must be evaluated. Additionally, the Union states that, like Proposal 1, Proposal 3 "provide[s] appropriate arrangements for employees whose seniority rights are adversely affected[,]" and "merely require[s] management to attempt to fill vacant positions through the reassignment of qualified employees whose positions have been eliminated." Id. at 7, 10.

Finally, the Union argues that Proposal 3 is virtually identical to the proposal found negotiable by the Authority in Department of the Treasury. The Union also states that the Authority should adhere to its decision in BATF and that, although that decision was reversed, the Authority is not bound to apply the court's decision in that case.

B. Analysis and Conclusions

1. The Proposal Directly Interferes with the Agency's Right to Select

Proposal 3 requires the Agency to give bargaining unit employees at least 10 days' notice of unit vacancies in the nuclear program and the opportunity to apply and be considered for vacant positions in the nuclear program before soliciting applications from non-bargaining unit employees. The proposal further requires that if the Agency determines that bargaining unit employees are equally qualified to perform the duties of the nuclear program with other bargaining unit employees or with non-bargaining unit employees, the Agency shall select from qualified bargaining unit employees, based on seniority, and shall select from qualified bargaining unit employees before offering a position to a non-bargaining unit employee.

The Authority has held that proposals requiring agencies to consider unit employees before soliciting or considering outside applicants directly interfere with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. See, for example, American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371, 401-02 (1991); Tennessee Air National Guard, 35 FLRA 886. We found that such proposals would preclude agencies from assessing the full range of potential candidates when initial employment decisions are made, that is, before agencies are permitted to inform themselves as to the qualifications of the full range of potential candidates for positions the agencies decide to fill. We also found in Tennessee Air National Guard, relying on the court's decision in Department of the Treasury, BATF, that such proposals would exert pressure on agencies to fill positions with bargaining unit employees rather than leave positions unfilled during the time it would take to initiate and complete a search for outside candidates. We noted that the practical consequence of such proposals resulted in a substantive limitation on management's right to select employees from any appropriate source and, therefore, that the proposals directly interfered with the exercise of that right.

We reach the same result here. By requiring the Agency to consider bargaining unit employees prior to soliciting applications from non-bargaining unit employees, Proposal 3 would exert the same type of pressure on the Agency to fill positions with bargaining unit employees and would place the same substantive limitation on the Agency's right to select employees from any appropriate source. Therefore, we find that Proposal 3 directly interferes with the Agency's right to select under section 7106(a)(2)(C) of the Statute. The Union's assertion that "management's consideration of applicants is not restricted to only bargaining unit employees," does not compel a different result. Response at 11. As noted, management retains the right to assess the full range of potential candidates when it decides to fill positions. Because the proposal would not permit the Agency to solicit non-bargaining unit employees concurrently with bargaining unit employees and because the practical consequence of the proposal would place pressure on management to select bargaining unit employees, the proposal directly interferes with the exercise of management's right to select.

We also reject the Union's contentions that Proposal 3 is negotiable on the same basis as a proposal found negotiable in Department of the Treasury and that the Authority should adhere to its decision in BATF. In Department of the Treasury, the proposal required the agency to give priority consideration to bargaining unit candidates but did not prevent the concurrent solicitation of other candidates. In contrast, the proposal here would prevent the concurrent solicitation of non-bargaining unit employees. In Tennessee Air National Guard, the Authority adopted the approach taken by the court, rather than that taken by the Authority in BATF, in finding that proposals requiring agencies to rank and consider employees before soliciting outside applicants placed substantive limits on management's right to select from any appropriate source. Because the Authority now follows the approach taken by the court, we reject the Union's request that the Authority adhere to its decision in BATF.

In finding that the portion of the proposal requiring the Agency to solicit and consider bargaining unit employees before non-bargaining unit employees directly interferes with the Agency's right to select, we need not address more specifically the remaining portions of the proposal. Also, and for the same reasons discussed in connection with Proposals 1, 2 and 4, we find that Proposal 3 does not constitute a negotiable procedure under section 7106(b)(2) of the Statute.

2. Proposal 3 Is Not a Negotiable Appropriate Arrangement

Initially, we disagree with the Agency's contention that the Union failed to establish how the proposal is intended to be an appropriate arrangement. The Union explained that the proposal is designed to apply to employees whose seniority rights may be affected or whose jobs may be eliminated as a result of the Agency's action in changing job descriptions. As so explained, we find that the proposal is intended as an arrangement. However, on balance, we conclude that the proposal would excessively interfere with the exercise of management's right to select.

As explained by the Union, the proposal is designed to give bargaining unit employees first consideration for vacant positions in the nuclear program and to require the Agency to select bargaining unit employees where they are equally qualified with non-bargaining unit employees. As we found above, by requiring the Agency to consider bargaining unit employees before soliciting applications from non-bargaining unit employees, the proposal would prevent the Agency from making selections from any appropriate source. We view this intrusion on the exercise of management's right as outweighing the benefits inuring to employees under the proposal.

Clearly, affording first consideration to bargaining unit employees would provide the employees with a benefit when positions in the nuclear program are filled. However, the practical consequence of initially limiting the Agency's consideration of applicants to bargaining unit employees would exert pressure on the Agency to fill positions from within the bargaining unit rather than soliciting candidates from other appropriate sources. In fact, the express wording of the proposal, as well as the Union's explanation, indicate that the proposal is intended to compel the selection of bargaining unit employees over equally qualified non-bargaining unit employees. It is clear, therefore, that the proposal would operate to restrict the Agency's ability to consider, and ultimately to select, candidates from any appropriate source. Moreover, this restriction would apply whenever the Agency decides to fill a position in the nuclear program and not simply when positions encumbered by bargaining unit employees have been eliminated, as suggested by the Union. Thus, the effect of the proposal on the Agency's ability to select from any appropriate source would arise each time the Agency decided to fill a position in the nuclear program. In our view, the unlimited applicability of the proposal goes beyond the adverse effects of the change in job descriptions on bargaining unit employees and excessively interferes with the Agency's right to select. Consequently, we conclude that Proposal 3 is not an appropriate arrangement under section 7106(b)(3) of the Statute. Compare Portsmouth Naval Shipyard, 37 FLRA at 253-58 (proposal that employer minimize displacement actions caused by RIF, to the extent possible, through reassignment held to be negotiable appropriate arrangement); American Federation of Government Employees, AFL-CIO, Local 2635 and Naval Communications Unit, Cutler, East Machias, Maine, 30 FLRA 41, 41-45 (1987) (proposal that employer make reasonable effort to reassign employees whose positions were eliminated found to be negotiable appropriate arrangement).

VI. Order

The petition for review is dismissed.




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

1. The Agency withdrew its allegation of nonnegotiability as to Proposals 5 and 6. Accordingly, those proposals are not before us and will not be considered in this deci