48:0489(47)NG - - AFGE, Local 3172 and HHS, SSA, Modesto, CA - - 1993 FLRAdec NG - - v48 p489



[ v48 p489 ]
48:0489(47)NG
The decision of the Authority follows:


48 FLRA No. 47

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

MODESTO, CALIFORNIA

(Agency)

0-NG-2131

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

September 3, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.(1)

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 two proposals submitted by the Union in response to the Agency's notice of intent to establish a Disability Unit.(2) The disputed portion of Proposal 1 relates to the rotation of claims representatives into the Disability Unit. Proposal 2 provides for the selection of volunteers for assignment to the Disability Unit. For the reasons that follow, we find that the proposals are nonnegotiable.

II. Proposal 1

Qualification Standards

1. The Employer will provide the Local 3172 President the general qualification standards in writing for the [Disability Unit].

2. The criteria will be solely job-related.

3. The Employer agrees not to set artificial qualification standards for the position being filled in order to circumvent the seniority selection procedures.

4. Qualification standards shall be applied consistently to all affected employees in the District Office.

5. Claims Representatives will rotate into the [Disability Unit] approximately every twelve months.

[Only the underscored language is in dispute.]

A. Positions of the Parties

The Agency contends that section 5 of Proposal 1 directly interferes with management's rights to assign employees and assign work under sections 7106(a)(2)(A) and (B) of the Statute. The Agency argues that section 5 prescribes the selection of employees without considering the availability of employees to perform the work and, therefore, "improperly affects the timing of assignment of work to employees." Statement of Position at 3.

The Agency states that in American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587 (1987), the Authority found that the right to assign work includes the right to determine the duration of an assignment. On that basis, the Authority held that a proposal that required the agency to rotate employees was nonnegotiable because it excessively interfered with management's right to assign work. As section 5 of Proposal 1 would require the Agency to limit the duration of assignments to twelve months, the Agency claims that it directly interferes with the exercise of management's right to assign work and assign employees. The Agency also claims that section 5 does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute because it would excessively interfere with those rights.

The Union did not file a response to the Agency's statement of position. In its petition for review, the Union contends that section 5 is a procedure "by which equivalent employees who perform equivalent work will be assigned to perform that work." Petition for Review at 4. The Union claims that the Authority has found that such proposals were negotiable in National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696 (1992) (Customs Service). Accordingly, the Union maintains that section 5 does not interfere with any management right. In the event there is such interference, however, the Union claims that the proposal is a negotiable appropriate arrangement.

B. Analysis and Conclusions

Proposal 1 concerns the qualification standards for employees who will be assigned to the Disability Unit. The Agency's objection to Proposal 1 is limited to the requirement contained in section 5 that claims representatives will rotate into the Disability Unit approximately every twelve months. Accordingly, our examination of this proposal concerns only that requirement.

The Authority previously has held that proposals or provisions that limit the duration of work assignments or details directly interfere with management's right to assign employees under section 7106(a)(2)(A) of the Statute. See, for example, American Federation of Government Employees, Local 1658 and U.S. Department of the Army, Army Tank-Automotive Command, Warren, Michigan, 44 FLRA 1375, 1379 (1992) (Army Tank-Automotive Command); National Treasury Employees Union and United States Customs Service, 31 FLRA 31, 33-34 (1988) (Customs). As the Authority stated in Customs, "[t]he right to decide when an assignment should begin and end is inherent in the right to assign employees under section 7106(a)(2)(A)." 31 FLRA at 33. By prescribing a mandatory rotation period, section 5 would essentially require the Agency to assign employees to the Disability Unit and to reassign them from that unit approximately every twelve months. Under these circumstances, we find that section 5 directly interferes with management's right to assign employees.

The Authority also has found that proposals that preclude management from determining the duration of work assignments directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, International Association of Fire Fighters, Local F-159 and U.S. Department of the Navy, Naval Station Treasure Island, San Francisco, California, 37 FLRA 836, 837-38 (1990); American Federation of Government Employees, National Council of Field Labor Locals, Local 644 and U.S. Department of Labor, Office of the Assistant Secretary, Philadelphia, Pennsylvania, 37 FLRA 828, 832-33 (1990). As section 5 would limit the duration of assignments to the Disability Unit to approximately twelve months, we find that it also directly interferes with the exercise of management's right to assign work.

We further find that section 5 of Proposal 1 does not constitute a procedure as claimed by the Union. While the Authority has found negotiable proposals that prescribe assignments of equivalent work to employees whom management has determined are equally qualified, see, for example, Customs Service, 46 FLRA at 753-54, section 5 does not address the assignment of employees. Rather, section 5 addresses the length of a work assignment. As we found above, because it does so, the section directly interferes with management's right to assign employees and assign work.

However, a proposal that directly interferes with management's rights is negotiable if it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Authority established an analytical framework for determining whether a proposal constitutes an appropriate arrangement in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG). Under the KANG framework, we initially determine whether the proposal constitutes an arrangement. To do this, we ascertain whether the proposal seeks to address or compensate for the adverse affects on employees by the exercise of management's rights.(3) See KANG, 21 FLRA at 31. If the proposal satisfies the first part of this analysis, we then determine whether the proposed arrangement is appropriate. Under the second part, we examine the competing practical needs of the parties and determine whether the negative impact on management's rights is disproportionate to the benefits that the arrangement confers on employees such that the proposal excessively interferes with the exercise of management's rights. See id. at 33.

We find that the record does not contain sufficient information to determine whether section 5 of Proposal 1 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. In its petition for review, the Union merely asserts that if the Authority finds that one of its proposals directly interferes with a management right, the proposal is intended as an appropriate arrangement. However, the Union has not stated how the employees are adversely affected by the exercise of management's rights or how the proposal is intended to address or compensate for those adverse affects. Moreover, even assuming we were to find that section 5 constitutes an arrangement, the Union has failed to create a sufficient record on which we can assess the benefits to employees that are to be derived from the proposal. We note, in this regard, that the Union did not file a response to the Agency's statement of position contesting the Union's assertion that the proposal is an appropriate arrangement.

It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party acts at its peril when it fails to do so. See, for example, Army Tank-Automotive Command, 44 FLRA at 1380. As the record does not provide a basis for determining whether section 5 of Proposal 1 constitutes an appropriate arrangement, and as it directly interferes with management's rights to assign employees and work under sections 7106(a)(2)(A) and (B) of the Statute, the proposal is nonnegotiable.

III. Proposal 2

Selection Announcement As it Pertains to Seniority

[P.1, conjunctive paragraphs 1-6]. 1. The Employer shall issue a memo to all qualified employees within the office and distribute the memo to each employee, and post a copy of the memo on the office Bulletin Board, and simultaneously send a copy to the Local 3172 President.

2. All qualified employees will be given an opportunity to volunteer.

3. Employees shall volunteer in writing.

4. Should the number of qualified volunteers exceed the number of positions available, the Employer shall normally select the qualified volunteer with the most seniority. Should there be an insufficient number of volunteers, the Employer shall normally select the qualified employee with the least seniority. Seniority will be determined by time in the current job position in the Modesto office. There shall be a different seniority roster for both Claims Representatives and Claims Development Clerks. The Employer will retain the right to reject a volunteer, after the first twelve months, if that employee was previously assigned in that unit and the Employer determines it necessary to rotate that employee out of the [Disability Unit].

5. If the Employer does not select an employee that would have been selected by seniority or inverse seniority as indicated above, the Employer will provide its reasons in writing to the Local 3172 President. The Employer's selection is subject to the negotiated grievance procedure, EEO procedure, etc.

6. When selection would create/aggravate a documented hardship for the employee, the parties (Employer and Union) may mutually agree to bypass the selection procedure.

A. Positions of the Parties

The Agency contends that Proposal 2 directly interferes with management's rights to assign employees under section 7106(a)(2)(A) and to determine the personnel by which agency operations shall be conducted under section 7106(a)(2)(B) of the Statute. According to the Agency, in American Federation of Government Employees, AFL-CIO, Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA 265 (1990), the Authority found that proposals that have the effect of forcing an agency to reassign employees to certain positions, regardless of organizational or mission requirements, directly interfere with management's right to assign employees and are outside the duty to bargain.

The Agency also contends that the right to assign employees includes the right to determine the qualifications and skills needed to perform the work of each job and to determine which employees meet the necessary job requirements. In this regard, the Agency claims that it is not sufficient that management is able to set the qualifications for the Disability Unit. Rather, the Agency argues that it must be able to determine the qualifications needed to perform other duties outside the Disability Unit and to assign employees to those positions. The Agency explains that a volunteer for the Disability Unit may be the only employee with the qualifications to perform duties outside the Disability Unit and, consequently, that the proposal would preclude the Agency from assigning that volunteer to duties outside the Disability Unit.

With respect to the right to determine the personnel by which its operations will be conducted, the Agency claims that the legislative history of section 7106(a)(2)(B) suggests that this right is independent of the rights to assign work and assign employees and includes the authority to decide which employees will perform work. The Agency asserts that the right to determine the personnel by which its operations shall be conducted would allow a supervisor to decide "which of a group of employees assigned to a particular position is to be used to handle work that needs to be done." Statement of Position at 9. The Agency maintains that this right "cannot be fettered by bilateral requirements such as announcing the work to be done, allowing employees to volunteer and selection by seniority." Id. at 9-10. Therefore, the Agency claims that regardless of employee wishes and the degree to which employees are equally qualified to perform the work in the Disability Unit, supervisors have the right to unilaterally decide which employees will be assigned to that unit and which employees will continue to perform other duties.

Finally, the Agency contends that Proposal 2 does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute.

The Union contends that Proposal 2 contains procedures that are negotiable under Authority precedent. In this regard, the Union claims that in U.S. Department of Transportation and Federal Aviation Administration and Professional Airways Systems Specialists, MEBA, AFL-CIO, 40 FLRA 690, 713-16 (1991), rev'd and remanded sub nom. Professional Airways Systems Specialists Division, District No. 1-MEBA/NMU v. FLRA, No. 91-1310 (D.C. Cir. June 22, 1992) (mem.; per curiam), decision on remand, 46 FLRA 103 (1992), and National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 44 FLRA 738 (1992), the Authority found negotiable proposals that establish seniority as a criterion for assigning work among qualified employees. However, if the Authority finds that Proposal 2 directly interferes with management's rights under section 7106(a), the Union claims that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

Proposal 2 provides, among other things, for the selection of volunteers for assignment to the Disability Unit. For example, section 4 would require the Agency to assign the employee with the most seniority to the Disability Unit, if the number of volunteers exceeds the number of positions available. The Agency objects to the proposal, in part, on the basis that the prescribed use of volunteers for the Disability Unit would prevent the Agency from assigning those employees to other duties, where their qualifications are more in need.

The Authority previously has held that the right to assign employees under section 7106(a)(2)(A) includes the discretion to determine which employees will be assigned to a particular position. 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, 1490 (1992). Because Proposal 2 would require the Agency to assign employees to the Disability Unit based on their volunteer status, we find that the proposal directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute.(4)

We find misplaced the Union's reliance on Authority precedent for the proposition that the use of seniority to select among equally qualified employees is a negotiable procedure. The issue raised by the Agency does not concern the selection of employees who volunteer for assignment to the Disability Unit and the use of seniority among equally qualified employees. Rather, the issue relates to management's right to continue to assign employees to duties and positions outside the Disability Unit.

Next, we address the Union's claim that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. As was the case with regard to Proposal 1, we find that the record does not contain sufficient information to determine whether the proposal constitutes an appropriate arrangement for employees adversely affected by the exercise of management's rights. Thus, other than its mere assertion that the proposal is an appropriate arrangement, the Union has not indicated how employees are adversely affected by the exercise of management's right to assign employees and how the proposal would ameliorate those effects and otherwise provide benefits to employees. Therefore, we conclude that Proposal 2 is nonnegotiable because it directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. In light of our conclusion, it is unnecessary to address the Agency's additional argument regarding section 7106(a)(2)(B) of the Statute.

IV. Order

The petition for review is dismissed.




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

1. Member Armendariz' concurring opinion is set forth below at note 3.

2. The Union originally submitted a number of proposals to the Agency. In response, the Agency claimed that certain broad issues were nonnegotiable but did not respond specifically to the Union's proposals. Not until the Agency filed its statement of position did it clarify the proposals to which it specifically objected. Thus, although the Union claimed that there were three proposals in dispute in its petition for review, the Agency only made arguments with respect to Proposals 1 and 2. The Agency did not address Proposal 3 in its statement of position. Under these circumstances, we find that only Proposals 1 and 2 are in dispute. We will not consider Proposal 3. See, for example, American Federation of Government Employees, Local 48 and U.S. Department of the Navy, Naval Submarine Base, Bangor, Washington, 38 FLRA 1359 (1991).

3. Consistent with United States Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218 (5th Cir. 1992) and United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992), and his separate opinion in National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 47 FLRA 705 (1993) (Member Armendariz, concurring in part and dissenting in part), Member Armendariz adheres to his view that in order for a proposal to constitute an arrangement within the meaning of section 7106(b)(3) of the Statute it must be narrowly tailored so as to benefit or compensate only those employees who would suffer an identifiable adverse effect as a result of an exercise of a management right.

4. In analyzing the proposal, we have not separately addressed the six numbered sections. Rather, we treat the proposal in its entirety. In this connection, we note the absence of any Union request to sever portions of the proposal, the absence of any specific arguments by the parties with respect to any section, other than section 4, and the reference in the proposal itself to the "conjunctive" nature of "paragraphs 1-6." See, generally, American Federation of Government Employees, Local 1409 and U.S. Department of the Army, Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA 747, 750 n.1 (1990) (Authority will grant request to sever portions of disputed proposal where such portions can stand independent