47:0512(45)NG - - DOD, Defense Contract Audit Agency, Central Region and AFGE Local 3529 - - 1993 FLRAdec NG - - v47 p512
[ v47 p512 ]
The decision of the Authority follows:
47 FLRA No. 45
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE
DEFENSE CONTRACT AUDIT AGENCY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER ON NEGOTIABILITY ISSUES
April 30, 1993
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).(1) The appeal concerns the negotiability of four subsections of a memorandum of understanding (MOU) that were disapproved by the Agency head under section 7114(c) of the Statute. The MOU relates to the Agency's decision to initiate a Total Quality Management (TQM) program.(2)
For the following reasons, we find that the three subsections of the MOU pertaining to the use of volunteers for the TQM program, which we have numbered Provisions 1, 2, and 3, are nonnegotiable because they directly and excessively interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. We also find that Provision 4, relating to the number of management representatives on a process action team (PAT), is outside the duty to bargain because it does not pertain to conditions of employment of bargaining unit employees.
II. Preliminary Matters
A. Sufficiency of Union's Petition for Review
The Agency asserts that the Union's petition for review should be dismissed because it does not include an explicit statement of meaning attributed to the various subsections of the MOU that are in dispute. Alternatively, the Agency argues that if the petition is not dismissed, the Authority should consider only the definitions set forth by the Agency as to the terms of art and acronyms contained in the MOU. The Union disagrees and contends that the petition for review meets the requirements contained in the Authority's regulations. The Union further asserts that the "alleged procedural deficiency is at least partly attributable to the generality in [the Agency head's] disapproval." Response at 9.
We reject the Agency's assertion that the Union's petition for review is deficient. We conclude that the Union has provided an adequate statement of meaning concerning the provisions and that the record, including the plain wording of the disputed portions of the MOU, is sufficient to rule on their negotiability. See, for example, American Federation of Government Employees, Local 2612 and U.S. Department of the Air Force, Griffiss Air Force Base, Rome Laboratory, Rome, New York, 46 FLRA 578 (1992) (Griffiss AFB), petition for review filed sub nom. American Federation of Government Employees, Local 2612 v. FLRA, No. 93-1056 (D.C. Cir. Jan. 19, 1993).
B. Effect of Negotiability Decision on MOU
The Union argues that if any of the disputed provisions are found nonnegotiable, the MOU would not become effective in the absence of the parties' agreement to implement the remaining portions of the MOU. Additionally, the Union argues that because TQM "is a permissive subject of bargaining," the Union reserves the right not to renegotiate the MOU. Response at 6 (footnote omitted). According to the Union, "[r]enegotiation necessitated by non-negotiability of any part of the MOU would be at AFGE's unilateral option." Id.
The Union's arguments raise matters that are not appropriate for resolution in this proceeding. The Authority previously has stated that when provisions of a collective bargaining agreement are timely disapproved by an agency head under section 7114(c), the collective bargaining agreement does not go into effect, unless the parties have agreed otherwise, and the agreement is not enforceable under the provisions of section 7114(c). See U.S. Department of the Army, Watervliet Arsenal, Watervliet, New York and National Federation of Federal Employees, Local 2109, 34 FLRA 98, 105 (1989) (Watervliet Arsenal) (citing Department of the Interior, National Park Service, Colonial National Historical Park, Yorktown, Virginia, 20 FLRA 537, 541 (1985), aff'd sub nom. National Association of Government Employees, Local R4-68 v. FLRA, 802 F.2d 1484 (4th Cir. 1986)). The issue before us is whether the Agency properly disapproved the disputed provisions under section 7114(c) of the Statute. Questions concerning the obligation of parties to implement portions of agreements that have not been disapproved, or to bargain subsequent to a valid disapproval, are appropriately raised in other proceedings. See, for example, National Treasury Employees Union, Chapter 251 and U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C., 40 FLRA 985 (1991); Watervliet Arsenal.
III. Provisions 1-3
Participation in the TQM process is voluntary. Both parties agree that participation will teach valuable skills and will offer a unique opportunity to employees to contribute to process improvements.
The Special Assistant for Quality and the Union president or his designee will jointly solicit volunteers and maintain a listing of all employees who wish to participate in team activities. When the pool of volunteers is not sufficient to staff a team, the Special Assistant for Quality will solicit nonbargaining unit individuals and the Union president or his designee will solicit bargaining unit individuals, to participate on the team. Teams that are established to review a process at an individual field office will be staffed from volunteers at the office involved.
The Union president will randomly select bargaining unit employees from the listing of volunteers obtained pursuant to Section C above. Appointments will be consistent with the experience and skill requirements outlined in the statement of work or mission statement.
[Only the underlined portions of the provisions are in dispute].
A. Positions of the Parties
1. The Agency
The Agency asserts that the provisions are nonnegotiable because they directly and excessively interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and with management's right to assign employees under section 7106(a)(2)(A) of the Statute. In support, the Agency cites Authority decisions for the proposition that proposals or provisions that prohibit the assignment of specified duties to employees or condition the assignment of duties to a volunteer directly interfere with management's right to assign work. The Agency maintains that the provisions here would restrict the assignment of work related to the TQM process solely to bargaining unit employees who volunteer to participate in the TQM program. According to the Agency, if there are no volunteers or the volunteers are unqualified, management would be prevented from assigning TQM or PAT work to other employees.(3) Because the wording of the provisions is mandatory, the Agency argues that the language of the provisions "completely abrogates the ability of management to direct employees, assign work, and assign employees to perform PAT work." Statement of Position at 5.
More specifically as to Provision 1, the Agency argues that it absolutely removes any managerial discretion to direct bargaining unit employees to participate in TQM activities. The Agency also asserts that the provision is nonnegotiable because it would prevent management from dealing with employees on matters that do not concern working conditions. By way of example, the Agency notes that a PAT was established to identify "high-risk sensitive contracts" and that the objective of that PAT had no or little impact on unit employees' conditions of employment. Id. at 7. Similarly, with regard to Provisions 2 and 3, the Agency asserts that the voluntary nature of TQM coupled with the wording of the provisions would prevent management from assigning TQM responsibilities to qualified employees. Also with respect to Provision 3, the Agency argues that allowing the Union to appoint employees is comparable to proposals that were found nonnegotiable by the Authority on the basis that they interfered with management's rights to assign employees and assign work. The Agency claims additionally that the second sentence of Provision 3, when read with the first sentence, clearly indicates that the Union president "is to be the sole arbiter of the qualifications of employees to perform PAT work." Id. at 12.
The Agency further argues that because the provisions directly interfere with the exercise of management's rights, the provisions do not constitute negotiable procedures.
Finally, the Agency argues that the provisions are not appropriate arrangements because they excessively interfere with management's rights to direct employees, assign work, and assign employees. Initially, the Agency argues that the Union has not substantiated its claim that the provisions are appropriate arrangements. In this regard, the Agency asserts that the Union has not explained how employees will be adversely affected by their assignment to duties connected with the TQM process and how the provisions are intended to ameliorate those adverse effects.
Alternatively, the Agency argues that Provision 1 does not constitute an arrangement because a mere change in job requirements does not adversely affect employees. However, even if the provision were found to constitute an arrangement, the Agency argues that it is nonnegotiable because it would impose substantive criteria on management's decision regarding qualifications for assignment to the TQM program. The Agency argues that Provisions 2 and 3 do not constitute negotiable appropriate arrangements essentially for the same reasons.
2. The Union
The Union generally asserts that Provisions 1, 2, and 3 do not directly interfere with the exercise of management's rights. While acknowledging that proposals that concern the designation of particular duties "directly interfere with [section] 7106(a)(2)(B)," the Union argues that the parties have agreed to the use of volunteers in other sections of the MOU that were not disapproved. Response at 11. Consequently, the Union asserts that the Agency head's disapproval of Provisions 1, 2, and 3 is an attempt "to renege on a binding agreement which was reached on the permissive subject of the 'types' of employees (volunteers) to be assigned to a particular 'work group(s)' (PATs)." Id. at 12-13. The Union cites Authority precedent in support of its contention that an Agency head cannot disapprove an executed agreement concerning a permissive subject of bargaining. The Union further argues that the intent of the parties, as referenced in another section of the MOU that was not disapproved, was to affirmatively set forth the retention of management's rights.
Alternatively, the Union asserts that Provision 2, which limits PAT participants to individual team offices, is a negotiable procedure. The Union maintains that, by the terms of the MOU, the parties have mutually "agreed that there is absolute equality among bargaining unit members . . . with respect to their qualifications to serve on PATs." Id. at 14. According to the Union, the Agency has essentially determined that employees are equally qualified to serve on PATs and, as such, the parties could negotiate and agree on which one of the Agency's equally qualified employees would serve on PATs at various locations.
The Union further argues with respect to Provision 3, which provides for the selection of volunteers by the Union president, that portions of the MOU that are not in dispute provide the Union with status equal to that of management. Accordingly, the Union asserts that Provision 3 is necessary to effectuate the portions of the MOU that were not disapproved. The Union also states that equivalent language was found negotiable in American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, 44 FLRA 63 (1992). Also with regard to Provision 3, the Union argues that the first sentence of the provision is procedural and is intended to ensure that any employee participating in the Agency's TQM program is truly a volunteer. The Union asserts that the random selection by the Union president of employee participants, as contemplated by the first sentence, constitutes "a negotiated criterion for determining which fungible volunteers would be selected to participate on the PATs." Response at 18-19. The Union asserts that the second sentence of the provision merely provides that employee participants in the TQM program will have the requisite qualifications but does not provide that the Union president will determine the actual qualifications.
Finally, the Union asserts that Provisions 1, 2, and 3 are negotiable appropriate arrangements. The Union states that the Agency's implementation of the TQM program could "radically complicate" the working conditions of bargaining unit employees because they "would have to adjust not only to each individual process change but to the organizational climate of institutionalized change." Id. at 21. According to the Union, the provisions are an attempt to reduce the adverse effects on employees by providing the protections of having a voice in the TQM program and limiting participation to volunteers. The Union further asserts that the voluntary nature of employee participation ensures that only employees who can "afford" to spend the time and effort away from their regular duties, on which they are rated for performance purposes, would be participants in the TQM program. Id. at 22. The Union also claims that the provisions would provide benefits to the Agency by ensuring that only those employees who are "convinced that TQM can work" would be participants in the program. Id. The Union asserts that these volunteers could then "lead the way for . . . employees who were initially reluctant to give up their cynicism [regarding TQM]." Id. The Union argues that the use of volunteers has no adverse effect upon and does not directly interfere with management's rights. It asserts that employees would also benefit from Union oversight and participation in the TQM program because such participation would increase the credibility of the TQM program with employees generally and would reduce its perceived threat to individual employees. In this regard, the Union asserts that changes resulting from the TQM process "may result" in changes to employees' positions, including the elimination or modification of positions. Id. at 23.
3. Supplemental Submissions Regarding FPM Bulletin 990-90
As noted earlier, the parties were given an opportunity to file supplemental submissions addressing FPM Bulletin 990-90. That bulletin, issued by the Office of Personnel Management (OPM) on November 18, 1992, is entitled "Total Quality Management."
The Union asserts in its submission that the Agency's attempts to determine which of its employees will participate in the TQM program is inconsistent with the FPM's model of TQM, which envisions the involvement of employees but does not require their mandatory participation. The Union also states that while the FPM may not be controlling in this case, insofar as it constitutes guidance to parties, "[t]he negotiability of the disputed provisions is favorably affected by FPM Supplement 990-90." Union's Supplemental Brief at 7. The Union maintains that OPM set forth the view that the "legal framework" of the Statute is not incompatible with both a voluntary TQM program and equal status for the Union. Id.
In its supplemental submission, the Agency argues that the FPM Bulletin merely provides guidance to management on TQM programs. The Agency asserts that the bulletin does not purport to establish a new Government-wide rule pertaining to the establishment of TQM programs and that it has no impact on the negotiability issues presently before the Authority.
B. Analysis and Conclusions
Initially, we reject the Union's argument that the provisions relate to the types of employees assigned to a work group and, as such, involve a permissively negotiable matter to which the parties had agreed and which were not subject to agency head disapproval under the Statute. The Authority has stated that the "types" of employees assigned to an organizational subdivision, work project, or tour of duty within the meaning of section 7106(b)(1) of the Statute refers to management's right to make determinations based on work or job-related differences between employees. See, for example, National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs Medical Center, Newington, Connecticut, 38 FLRA 211, 216 (1990). The provisions here do not encompass such determinations. Rather, the provisions relate to the assignment of particular duties to employees. It is by now well established that the right to assign particular duties to employees involves the right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, International Federation of Professional and Technical Engineers and U.S. Department of the Interior, Bureau of Reclamation, Denver Office, Denver, Colorado, 43 FLRA 998, 1001 (1992). As explained below, the provisions here relate to the assignment of TQM responsibilities to employees and, therefore, relate to the exercise of a management right under section 7106(a)(2)(B) of the Statute.
In Griffiss AFB, the Authority addressed a union proposal that required bargaining unit employee participation on TQM teams to be purely voluntary. The Authority found that because the proposal would have prohibited management from assigning unit employees the duties attendant to participation on TQM teams, the proposal directly interfered with the right to assign work under section 7106(a)(2)(B) of the Statute. We reach the same result here. In fact, the Union acknowledges that proposals concerning the designation of particular duties to employees directly interfere with management's right to assign work. The Union's assertions that the use of volunteers is consistent with other provisions of the MOU that were not disapproved, including that relating to the retention of management's rights, and is necessary for the effective operation of the TQM program does not render the provisions negotiable or alter the fact that the Union intends that all the bargaining unit employees who participate in the TQM program would be volunteers. As such, the Agency would be prohibited from assigning any TQM duties to those employees who did not volunteer for the TQM program. Accordingly, we conclude that Provisions 1, 2, and 3 directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.
Additionally, we reject the Union's argument that Provision 3 is negotiable because the first sentence is procedural and the second sentence is designed merely to ensure that participants have the requisite qualifications to serve on PATs. Insofar as the provision is predicated on voluntary participation by unit employees, it directly interferes with management's right to assign work for the reasons stated above. Moreover, because the disputed provisions directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute, they do not constitute negotiable procedures under section 7106(b)(2) of the Statute. 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, 38 (1990).
We also conclude, as we did in Griffiss AFB, that the provisions do not constitute negotiable appropriate arrangements under section 7106(b)(3) of the Statute. Assuming, without deciding, that the provisions are intended as arrangements under section 7106(b)(3), we find that they would excessively interfere with management's right to assign work. In this case, the Union argues that the provisions would promote the TQM program by making employee participation voluntary. The Union further argues that participation on a voluntary basis would alleviate the adverse effects that participation in the TQM program may have on employees, such as the potential adverse effect on employee performance ratings. Additionally, the Union argues that voluntary participation in the TQM program ensures that only those employees who believe they can afford to spend the time on TQM duties would participate.
Although the benefits afforded by the provisions could, in some circumstances, be significant, we conclude, on balance, that the benefits are outweighed by the burden the provisions would place on the exercise of the Agency's right to assign work. In this regard, the provisions would condition the assignment of TQM duties to employees based solely on the employees' willingness to volunteer. The provisions do not allow for the assignment of qualified bargaining unit employees in situations where there would be an insufficient number of volunteers. As the provisions contain no exceptions allowing the Agency to assign bargaining unit employees to TQM duties involuntarily, we conclude that the provisions excessively interfere with the Agency's right to assign work. See Griffiss AFB, 46 FLRA at 580-81. Consequently, we conclude that Provisions 1, 2, and 3 are nonnegotiable.(4)
Finally, we conclude that FPM Bulletin 990-90 does not render the provisions negotiable. Initially, we note that the bulletin, by its own terms, is designed solely to provide guidance to agency officials concerning TQM programs. It is not a Government-wide regulation mandating a certain approach to TQM programs. See, generally, Overseas Education Association Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 354 (1986), aff'd sub nom. Overseas Education Association, Inc. v. FLRA, 827 F.2d 814 (D.C. Cir. 1987) (a Government-wide regulation includes regulations and official declarations of policy that apply to the Federal civilian workforce as a whole and are binding on the Federal agencies and officials to which they apply). Further, we find that nothing contained in the bulletin prevents the Agency from assigning TQM responsibilities to employees or conditions such assignment on employees' voluntary participation.
Although we find that the FPM bulletin does not render the provisions negotiable, we note that OPM has provided guidance to agencies with respect to labor-management relations. Specifically, OPM has recognized that union support and active participation in the TQM program can lead to its success and has suggested ways of achieving union support and participation. Moreover, an agency's implementation of any TQM program and any bargaining concerning a TQM program must be consistent with the Statute.
IV. Provision 4
A Field Audit Office may establish a PAT to review office work processes and recommend improvements not affecting other offices. Prior to establishment of such PATs, a statement of work and request for approval will be submitted to the QMB. The number of management participants on an FAO PAT will not exceed the number of bargaining unit participants on the same team. Recommendations from the FAO PATs must be submitted to the QMB for approval. [Only the underlined portion of the provision is in dispute].
A. Positions of the Parties
1. The Agency
The Agency asserts that this provision directly and excessively interferes with its rights to assign and direct employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B) of the Statute. The Agency asserts that when Provision 4 is read in conjunction with Provisions 1-3, it is apparent that unless at least one bargaining unit employee volunteers to serve on a PAT and the Union president selects that employee, management would be precluded from establishing a PAT at a field audit office. The Agency argues that the Authority consistently has found that proposals or provisions that condition an agency's right to assign work on pre-established conditions or a union's agreement directly and excessively interfere with an agency's right to assign work. The Agency contends that the Authority should reach the same result here. The Agency also asserts that the provision is not a negotiable procedure because it restricts management from assigning TQM duties to employees outside of a particular office. Finally, the Agency asserts that Provision 4 is not an appropriate arrangement because it excessively interferes with management's right to assign work.
2. The Union
The Union contends that the provision concerns the "numbers . . . of employees" within the meaning of section 7106(b)(1) of the Statute. The Union maintains that because the parties agreed on a permissive subject of bargaining, the Agency was not authorized to disapprove the provision. The Union also asserts that Provision 4 is necessary if the parties' intent that management and the Union participate equally in the TQM program is to be effectuated. The Union further claims that the provision is intended as an appropriate arrangement under section 7106(b)(3) of the Statute for the same reasons expressed in connection with Provisions 1-3.
B. Analysis and Conclusions
We agree with the Agency that Provision 4 is nonnegotiable. However, we find that the provision is nonnegotiable because it does not principally relate to conditions of employment of bargaining unit employees. By its express wording, Provision 4 seeks to regulate the number of management participants on a TQM team. In many respects, this provision is similar to a proposal that was before the Authority in National Federation of Federal Employees, Local 1451 and Naval Training Center, Orlando, Florida, 3 FLRA 88 (1980). In that case, the union proposed that each party have a minimum of three designated representatives for the purpose of negotiations. The Authority found that the proposal was nonnegotiable because it "concern[ed] matters which [were] beyond those directly affecting unit employees." Id. at 89. Subsequently, the Authority's decision was affirmed in National Federation of Federal Employees v. FLRA, 652 F.2d 191 (D.C. Cir. 1981), in which the court stated the following: "The number of representatives management chooses to designate to carry out its duty to bargain is simply not a matter properly included under the definition of 'conditions of employment' concerning which management must negotiate." Id. at 194.
More recently, the U.S. Court of Appeals for the District of Columbia Circuit found that proposals that purport to regulate the terms and conditions of employment of supervisory personnel are outside the duty to bargain. See United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992). Because Provision 4 would regulate the terms and conditions of employment of management personnel, it is outside the duty to bargain under the Statute.
The petition for review is dismissed.
(If blank, the decision does not have footnotes.)
1. The Union requested permission to file a supplemental submission to address the application of Federal Personnel Manual (FPM) Bulletin 990-90, which was issued shortly after the Union filed its response with the Authority. The Authority granted the Union's request and gave the Agency an opportunity to file a supplemental submission. Those submissions have been considered by the Authority.
2. The Union requests that the Authority sever any portions of the provisions that may be negotiable from those portions that are found nonnegotiable. Ordinarily, the Authority grants such requests where the negotiability of portions of a proposal can stand independently of the rest of the proposal and have been specifically addressed by the parties. See, for example, American Federation of Government Employees, Local 2077 and U.S. Department of