46:0322(28)NG - - AFGE, Local 3172 and HHS, SSA, San Jose District, San Jose, CA - - 1992 FLRAdec NG - - v46 p322



[ v46 p322 ]
46:0322(28)NG
The decision of the Authority follows:


46 FLRA No. 28

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3172

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

SAN JOSE DISTRICT

SAN JOSE, CALIFORNIA

(Agency)

0-NG-2045

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

October 28, 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 by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one provision of a Memorandum of Understanding (MOU) that was disapproved by the Agency head under section 7114(c) of the Statute.

The provision provides that an employee who was selected for a reassignment will be given the first right to refuse a comparable vacancy that occurs in the branch office from which the employee was reassigned. For the following reasons, we find that, although the provision directly interferes with management's right to fill positions under section 7106(a)(2)(C) of the Statute, it is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

II. Background and Preliminary Matters

The Social Security Administration (SSA), San Jose District Office (Agency or District Office) and the Union executed an MOU dated February 28, 1992. The MOU was designed to address the impact and implementation of the Agency's decision to permanently reassign a bargaining unit employee in the position of Claims Development Clerk (CDC) from the Sunnyvale Branch Office, a component of the District Office, to the District Office itself. SSA reviewed the MOU and disapproved the provision here in dispute.

As a preliminary matter, the Union contends that the Agency head disapproval was deficient because it failed to identify with sufficient specificity any law, rule or regulation which would bar negotiations over the provision, as is required under section 2424.1 of the Authority's Rules and Regulations. The Union notes that while the Authority permits "wide latitude in the form [that] allegations of non-negotiability may take, the Authority should impose a reasonable content requirement" for such allegations. Response at 2. The Union further maintains that the Agency has attempted "to change and broaden" the basis of its disapproval by referring in its statement of position to both section 7106(a) of the Statute and, more particularly, to section 7106(a)(2)(C)(ii). Id. at 19. The Union states that in the disapproval the Agency head referred only to management's right to select from an appropriate source and that the later reference to section 7106(a) includes additional management rights.

The Agency disputes the Union's contentions. Citing Authority precedent, the Agency states that there is no requirement in the Statute or the Authority's Rules and Regulations that an allegation of nonnegotiability be made with any particular degree of specificity. Nevertheless, the Agency maintains that "when it indicated in the disapproval letter that the provision restricted management's right to decide whether to fill a vacancy and to select from any appropriate source, in effect, it was citing . . . [s]ection 7106(a) and (2)(C) and (ii) of the Statute[.]" Statement of Position at 5. Consequently, the Agency states that it did, in fact, identify the portion of the Statute with which it alleges the provision is inconsistent.

We reject the Union's contention that the disapproval is deficient. As noted by the Agency, the Authority has consistently held that there is no requirement in either the Statute or the Authority's Rules and Regulations that a disapproval of a locally executed agreement must be made with specificity or only with particular wording. See, for example, American Federation of Government Employees, Local 3342 and U.S. Department of Health and Human Services, Social Security Administration, New York Region, 36 FLRA 367, 370 (1990). We find that the disapproval here, as communicated to the Union, sufficiently set forth the basis of the Agency head's position. We decline the Union's request that the Authority impose a "reasonable content requirement" for allegations of nonnegotiability.

We also reject the Union's claim that the Agency improperly sought to change or broaden the basis of its disapproval by making certain contentions in its statement of position. Even assuming that additional matters were raised in the statement of position, that would not constitute a basis on which to find the statement deficient or reject the arguments raised therein. We note particularly that the Authority's Rules and Regulations provide unions with an opportunity to respond to contentions raised in a statement of position. The Union availed itself of the opportunity here and filed a response to the Agency's statement of position. In addition, it is clear that in the disapproval, the Agency head stated that the provision restricted management's ability "to decide whether to fill a vacancy and to select from any appropriate source . . . ." Petition for Review, Attachment 1 at 1. Those are precisely the contentions that were raised in greater detail in the Agency's statement of position.

III. Provision

The selectee will be entitled to the first right of refusal for any CDC vacancy that occurs in the Sunnyvale BO.

IV. Positions of the Parties

A. Agency

The Agency contends that the provision directly interferes with management's rights under section 7106(a)(2)(C)(ii) of the Statute to decide whether to fill a vacancy and to select from any appropriate source. The Agency argues that the provision is similar to a proposal found nonnegotiable in New York State Nurses Association and Veterans Administration, Bronx Medical Center, 30 FLRA 706, 744-46 (1987) (Bronx Medical Center), reversed as to other matters sub nom. Veterans Administration Bronx Medical Center v. FLRA, No. 88-1150 (D.C. Cir. Sept. 27, 1988). Among other things, the proposal in that case required the agency to offer an employee returning from a leave of absence the position the employee previously held, if the position became vacant and management decided the employee was qualified to perform the duties of the position. The Authority found that that portion of the proposal interfered with the agency's right to select from any appropriate source by preventing the agency from filling the returning employee's former position with applicants from other appropriate sources. The Authority further found that the proposal restricted management's right to determine whether to fill a position that became vacant and, therefore, that it interfered with the agency's right to decide whether to fill vacancies.

The Agency also disputes the Union's claim that the provision is an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency asserts that the Union has not identified the adverse effects or foreseeable effects on the particular employee selected for the reassignment. The Agency claims that "the mere assertion that a selected employee does not want to relocate does not create an adverse impact situation." Statement of Position at 8. In this regard, the Agency states that the same functions are performed in both offices and that the offices "are comparable in terms of work environment, morale, location . . ., amenities . . . and are approximately 10 miles apart." Id. (emphasis deleted). The Agency also claims that the provision would apply to any employee selected for a reassignment and that there would be no adverse effects on employees who volunteer for reassignments.

The Agency further maintains that if the Authority determines that the provision is intended as an arrangement, the provision excessively interferes with management's rights "to decide that a CDC vacancy may remain unfilled or, if it decides to fill a vacancy, to select from another source, such as a reinstatement or transfer[.]" Id. at 9. The Agency adds that "[t]his excessive interference with management's rights outweighs any possible benefit for the affected employee." Id. The Agency claims that the provision is similar to one that was found not to constitute an appropriate arrangement in Bremerton Metal Trades Council and Naval Supply Center Puget Sound, 32 FLRA 643, 654-57 (1988) (Naval Supply Center). In that case, as relevant here, the Authority concluded that Provision 6, which essentially required the agency to make a reasonable effort to fill available vacancies from a single source, did not preserve management's discretion to determine whether to fill vacancies and, therefore, excessively interfered with management's right to make selections for appointments under section 7106(a)(2)(C) of the Statute. The Agency states that the same result should be reached here.

B. Union

In its petition for review, the Union stated that the provision applies to future vacancies for employees who have been involuntarily reassigned. In its response, however, the Union claims that the provision "is limited only to the instant reassignment, and would not be applicable to volunteers who might lateral to San Jose in the future[.]" Response at 8 (emphasis deleted). In this regard, the Union cites a portion of the MOU that is not in dispute, which provides "[t]he parties agree this MOU covers this one CDC reassignment." Id., quoting MOU at 1.

The Union also contends that the provision "is a negotiable procedure because it merely affects which of two or more CDC employees will be assigned at one of two possible offices[.]" Response at 3. The Union states that the provision affords the "first right of refusal to the reassigned employee if an available CDC vacancy comes into existence in Sunnyvale." Id. at 1 (emphasis in original). The Union also asserts that the provision is intended to apply "after a decision has been made to place someone in the vacated (or reestablished) Sunnyvale CDC position[.]" Id. at 14 (emphasis in original). The Union adds that the provision is comparable to proposals that concern the location at which employees perform equivalent work and that the Authority has held do not directly interfere with management's rights to assign work and direct employees.

The Union also maintains that the provision is comparable to a portion of the proposal in Bronx Medical Center that was found negotiable. The Union states that that portion of the proposal, which concerned placing a returning employee in a position, was found negotiable because it did not interfere with management's right to select from an appropriate source. The Union adds that the Agency's reliance on a different portion of the same proposal is misplaced because the provision here does not require the Agency to fill a position from a particular source. The Union states that, "[p]ut another way, interference with the determination of the source from which positions are to be filled is not presented by the mere reservation of a position for an employee, once such a position becomes available." Id. at 10. The Union also states that providing the reassigned employee with the first right of refusal "permits the employer to determine the source from which another employee will be selected," and allows for the concurrent solicitation, rating and ranking of candidates from various sources. Id. at 12.

The Union further argues that the Agency has not shown that the provision interferes with management's right to determine whether to fill a particular position. In this regard, the Union asserts that the Agency's reliance on section 7106(a)(2)(C)(ii) of the Statute is misplaced because the Agency has not established that that section of the Statute encompasses a right to determine whether to fill a position. In any event, the Union maintains that the provision applies only when a CDC position exists in the Sunnyvale Branch Office that the Agency decides to fill.

In the alternative, the Union contends that the provision is negotiable as an appropriate arrangement. The Union states that the provision is intended to ameliorate the adverse effects of the involuntary reassignment of an employee from the Sunnyvale Branch Office to the San Jose District Office. The Union notes that the particular employee who was involuntarily reassigned is a single parent who occupies a position at the GS-5 level. The Union states that the involuntary reassignment has: (1) increased the employee's commuting time and expenses because the San Jose District Office is located further from the employee's home than the Sunnyvale Office and lacks free parking close to the worksite; (2) required the employee to make additional childcare arrangements because of the increased commuting time; (3) increased the employee's workload insofar as the employee must assist more claims representatives in the San Jose Office than in the Sunnyvale Office; 4) increased the employee's lunch costs because the San Jose worksite has fewer facilities for food services than the Sunnyvale Office; and (5) decreased the employee's morale because the employee is not working in her preferred location. With respect to the increase in parking costs, the Union explains that, although free parking exists at the San Jose Office, it is located several blocks from the office and in an unsafe area. The Union states that the employee's need to park close to the worksite is related to her childcare obligations. By way of example, the Union notes that the employee's child suffered a minor accident while at day care that required the employee to leave work immediately to take the child to an emergency medical care facility.

The Union maintains that the effect of the provision on any management right is "practically nil." Id. at 28. The Union explains that the Agency is free to refrain from filling a Claims Development Clerk position and is free to determine the qualifications of the employees to fill the position. In contrast, the Union argues that the benefits to the employee, on balance, "tip very clearly in the direction of negotiability." Id. at 29.

V. Analysis and Conclusions

We find that the provision directly interferes with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. However, we further find that the provision is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

Initially, we note that there are inconsistent statements by the parties concerning the scope of the provision's applicability. In its petition for review, the Union stated that the provision would apply to future vacancies. The Agency also states that the provision would apply to any employee selected for reassignment, including volunteers for reassignment. However, in its response to the Agency's statement of position, the Union states that the provision was part of the MOU and was specifically limited to a single reassignment action.

In our view, it appears that the MOU was designed to be limited in scope to one reassignment action. Thus, the introductory paragraph of the MOU, which is not in dispute, provides, in relevant part, that it was entered into by the Agency and the Union to "govern[] the permanent reassignment of a Claims Development Clerk (CDC) from the Sunnyvale Branch Office (BO) to the San Jose District Office (DO). The parties agree this MOU covers this one CDC reassignment." Petition for Review, Attachment 2 at 1. Based on the plain wording of the MOU, and noting the Union's statement in its reply brief, we find, for purposes of our decision, that the provision is limited to a single reassignment action.

The provision states that the selected employee is entitled to the first right of refusal for any CDC vacancy that exists in the Sunnyvale Branch Office. Essentially, the provision would require the Agency to offer a vacant CDC position to the reassigned employee and to fill that position with the employee unless she declines the offer.

We reject the Agency's claim that the provision interferes with its right to decide whether to fill a vacancy. The Union states that the provision would apply only after the Agency has decided to fill a vacated or reestablished CDC position in the Sunnyvale Branch Office. As the provision would permit the Agency to make the threshold determination as to whether to fill a position if one becomes vacant, we conclude that the provision does not interfere with the exercise of that management right under section 7106(a)(2)(C) of the Statute. However, to the extent the provision would limit management to making a selection from a single source, the provision directly interferes with management's right to select from any appropriate source under section 7106(a)(2)(C).

Provisions or proposals that require management to fill vacancies from a single source directly interfere with management's right to select from any appropriate source. See, for example, American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1486-88 (1992) (proposal requiring agency to select an internal applicant rather than recruit from outside the agency to fill positions at a higher grade level found to directly interfere with management's right to select from any appropriate source); National Association of Government Employees, Local R5-82 and U.S. Department of the Navy, Navy Exchange, Naval Air Station, Jacksonville Florida, 43 FLRA 25, 34-36 (1991) (provision stating that it was the employer's policy, where possible, to promote from within was found to directly interfere with management's right to select from any appropriate source). The provision here would require the Agency to offer a vacant CDC position to the employee who was reassigned and to fill the position with that employee unless she were to refuse the offer. Because the provision would prevent management from making a selection from any other appropriate source, unless the employee refused the offered position, the provision directly interferes with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute.

The Union claims that providing the reassigned employee with the first right of refusal "permits the employer to determine the source from which another employee will be selected," and allows for the concurrent solicitation, rating and ranking of candidates from various sources. Response at 12. This argument, however, does not eliminate the interference with the exercise of management's right to fill positions. The Union's contention ignores the fact that the Agency can exercise its right to fill positions from any appropriate source only when the employee declines the offer to accept a CDC position in the Sunnyvale Office. Moreover, the fact that the Agency can concurrently solicit, rate, and rank candidates is nullified if the Agency is required to fill the position with the reassigned employee if she accepts the position.

In light of our finding that the provision directly interferes with management's right to fill positions, we reject the Union's claim that the provision constitutes a negotiable procedure under section 7106(b)(2) of the Statute. It is well established that proposed matters that directly interfere with the exercise of a management right do not constitute negotiable procedures under section 7106(b)(2) of the Statute. See, for example, National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112, 1126-27 (1991). We also disagree with the Union's reliance on Authority precedent finding that proposals concerning the location at which equally qualified employees perform their duties constitute negotiable procedures. The provision here does not establish criteria for determining which employee, among equally qualified employees, will perform work at a specified location. Rather, the provision, in effect, would require the selection of a particular employee, if she accepts the position, without regard to the presence of other, equally qualified employees.

Having found that the provision directly interferes with management's right to select from any appropriate source, we next consider whether the provision constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. To determine whether a proposal constitutes an appropriate arrangement, we address whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right, and whether the proposal is appropriate because it does not excessively interfere with the exercise of a management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG).

The Union claims that the provision was designed to ameliorate the adverse affects flowing from the reassignment of a bargaining unit employee from the Sunnyvale Branch Office to the San Jose District Office. We find that the provision is an arrangement for an employee who was adversely affected by the exercise of management's right to assign employees under section 7106(a)(2)(A) of the Statute. We further find that the provision is an appropriate arrangement because it does not excessively interfere with management's right to select.

In determining whether a proposal excessively interferes with the exercise of a management right, we weigh "the competing practical needs of employees and managers[]" to ascertain whether the benefit to employees flowing from the proposal outweighs the proposal's burden on the exercise of the management right or rights involved. KANG, 21 FLRA at 31-32. In weighing those needs in this case, we note that the employee who was reassigned has incurred inconvenience and expense as a result of her relocation from the Sunnyvale Branch Office to the San Jose District Office. Although the Agency points out that the positions in the two offices are comparable in many respects and that the locations are only 10 miles apart, we find that the adverse effects on the reassigned employee are considerable. For example, as a result of the reassignment, the employee has had to travel increased distances, which may affect her ability to respond promptly to her child's needs. In this regard, the Union points to an occasion on which the employee was required to leave work in order to deal with a medical emergency involving her child. In addition, it is undisputed that the employee has had to make additional childcare arrangements, and has incurred increased parking and food service costs. Noting that the employee is a single parent occupying a position at the GS-5 level, we view the benefits that would be afforded to the affected employee in being able to return to the Sunnyvale Branch Office as significant.

On the other hand, the burden on the Agency's right to select from any appropriate source is minimal. As we stated earlier, the MOU containing the disputed provision is limited to a single reassignment action. Therefore, the provision would prevent the Agency from selecting from another appropriate source only in a very limited circumstance. The Agency would be free to fill any other position in the Sunnyvale Branch Office from an appropriate source once the reassigned employee was offered and had accepted a CDC position there. Moreover, if the employee refused to accept a CDC position at the Sunnyvale Branch Office, the Agency could fill that position