49:0396(34)NG - - NFFE, Local 2079 and Agriculture, Forest Service, Umpqua National Forest, Roseburg, OR - - 1994 FLRAdec NG - - v49 p396



[ v49 p396 ]
49:0396(34)NG
The decision of the Authority follows:


49 FLRA No. 34

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2079

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

FOREST SERVICE

UMPQUA NATIONAL FOREST

ROSEBURG, OREGON

(Agency)

0-NG-2170

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 7, 1994

_____

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 eight proposals. For the following reasons, we conclude that one proposal is not properly before us and that the remaining seven proposals, concerning the Agency's decision to reassign a unit employee, are nonnegotiable.

II. Preliminary Matter

Under section 7117 of the Statute and section 2424.1 of the Authority's Rules and Regulations, we will consider a petition for review of a negotiability issue only where the parties are in dispute over whether a proposal is inconsistent with law, rule, or regulation. See, for example, American Federation of Government Employees, Local 1020 and U.S. Department of Veterans Affairs, Medical Center, Marion, Indiana, 47 FLRA 258, 259 (1993)(VA Medical Center, Marion). With respect to Proposal 4, the Agency contends only that the Union waived its right to bargain in the parties' master agreement. See Petition for Review, enclosure 10 at 2. As the Agency does not allege that the proposal is inconsistent with law, rule, or regulation, the petition for review as to that proposal does not satisfy the conditions governing review of negotiability issues.

Accordingly, we will dismiss the Union's petition for review as to Proposal 4, without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are met, and the Union elects to file such an appeal. To the extent that a dispute over whether the proposal is barred by the parties' master agreement remains, the dispute should be resolved in other appropriate proceedings. See VA Medical Center, Marion, 47 FLRA at 259.

III. Proposals 1 and 7

Proposal 1

The present education schedule to remain as it is, with all six staff teachers.

Proposal 7

Maintain the classroom assignments at the rations [sic] set by the Department of Labor policy and requirement handbook, i.e. (P.R.H.) P.R.H.3 basic education 2.1.3. page 19.

A. Positions of the Parties

1. The Agency

According to the Agency, it decided to reassign one training instructor from the Education to the Vocational Department. As a result, the Agency states, it changed the duties assigned to teachers in the Education Department. The Agency asserts that Proposals 1 and 7 would prevent reassignment of the training instructor and changes to the assigned duties of teachers in the Education Department and that the proposals excessively interfere with its rights to determine its organization and the number of employees assigned to an organization under section 7106(a)(1) of the Statute, to assign and direct employees under section 7106(a)(2)(A), and to assign work under section 7106(a)(2)(B). In particular, the Agency contends that these proposals "abrogate[]" its right to reassign a teacher to another organizational segment, and to decide which duties the teacher will perform in that organization. Petition for Review, enclosure 10 at 1-2.

2. The Union

The Union did not file a reply brief. In its petition for review, the Union states that it submitted these proposals to address the adverse effects stemming from the loss of one teaching position in the Education Department. The Union points out that the duties of the lost position "have been divided among the rest, and those teachers now have: more lesson plans, more progress evaluations to write, more record keeping to do, more reports to be made, and more student problems to solve." Petition for Review at 1. According to the Union, the resulting larger class size has made it more difficult to maintain classroom order and increased the number of disciplinary problems. The Union also maintains that the change "has increased the stress levels of both teachers and students . . . ." Id. (1)

B. Analysis and Conclusions

The right of an agency to assign work under section 7106(a)(2)(B) of the Statute includes the rights to determine the particular duties to be assigned and to whom or what positions the duties will be assigned. See, for example, National Federation of Federal Employees, Local 1214 and U.S. Department of the Army, Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina, 45 FLRA 1121, 1129 (1992).

The Agency asserts, without contradiction, that Proposals 1 and 7 are intended to prevent reassignment of employees from the Education Department to other organizational elements. As the Agency's interpretation of the proposals is consistent with their plain wording and is not disputed by the Union, we adopt it for purposes of our decision. Based on this interpretation, we find that the proposals would prevent management from revising the work assignments of any teachers located in the Education Department and would preclude assignment of those teachers to other organizational elements to assume functions normally performed in those elements. As the proposals preclude the assignment of any new or revised responsibilities to a particular group of employees, we conclude that the proposals directly interfere with the Agency's right to assign work. See id. See also Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 778-80 (1987) (DoD Dependents Schools), aff'd as to other matters sub nom. Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988) (per curiam).

Having found that Proposals 1 and 7 directly interfere with management's right to assign work, we next consider whether they are nevertheless negotiable as appropriate arrangements within the meaning of section 7106(b)(3) of the Statute. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG), the Authority established an analytical framework for determining whether a proposal constitutes an appropriate arrangement. First, we determine whether the proposal constitutes an arrangement for employees adversely affected by the exercise of a management right. To do this, we ascertain whether the proposal in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management's rights. See National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA No. 24 (1994) (Member Armendariz concurring in part and dissenting in relevant part) (Department of Commerce). Second, if we conclude that the proposal is an arrangement, we then determine whether the proposal is appropriate or inappropriate because it excessively interferes with the exercise of a management right. We make this determination by weighing "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.

Here, even assuming that Proposals 1 and 7 constitute arrangements, we conclude that they are nonnegotiable. As discussed above, Proposals 1 and 7 would prohibit the Agency from exercising its right, under section 7106(a)(2)(B), to assign work to employees in the Education Department. That is, the proposals would mitigate the adverse effects of management's exercise of its right to assign work by imposing a blanket prohibition on any change in the work assignments of teachers in the Agency's Education Department. We conclude that, by completely prohibiting changes in work assignments of these employees, Proposals 1 and 7 excessively interfere with the Agency's right to assign work and are nonnegotiable. See Service Employees International Union, Local 200-B and U.S. Department of Veterans Affairs, Medical Center, Syracuse, New York, 44 FLRA 821, 835 (1992)(VA, Syracuse).

V. Proposals 2, 5, and 6

Proposal 2

Keep the special needs class as it is for those students that need special help.

Proposal 5

Keep the health education program, the alcohol and other drugs of abuse program, and parenting under one teacher.

Proposal 6

Keep the world or work program, the cultural awareness program and the exit phase world of work program under another teacher.

A. Position of the Agency

The Agency maintains that, as the special needs class referenced in Proposal 2 is taught by a teacher under contract to the Agency and not by an Agency employee, Proposal 2 "does not concern the conditions of employment of employees[.]" Statement of Position at 4. Alternatively, the Agency asserts that Proposal 2 "abrogates" its right under section 7106(a)(1) to determine whether a special needs class will be offered to students as part of its mission, and to determine, under section 7106(a)(2)(B), whether it will assign an employee the work of providing a special needs class instead of instruction in G.E.D. Id. at 5. The Agency argues that Proposals 5 and 6 interfere with the right to assign work because they determine what work will be assigned to employees and prevent future decisions to change those assignments.

B. Analysis and Conclusions

As noted previously, proposals that prevent management from assigning particular functions to particular individuals directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, American Federation of Government Employees, Local 4041 and U.S. Department of Health and Human Services, Social Security Administration, Albuquerque Teleservice Center, Albuquerque, New Mexico, 45 FLRA 3, 15 (1992).

The Agency construes Proposal 2 as requiring that the special needs class continue to be taught by a teacher under contract to the Agency. As the Agency's interpretation is consistent with the proposal's plain wording and is not disputed, we adopt it for the purposes of our decision. Based on this interpretation, the proposal would prevent management from assigning the teaching of the special needs class to an Agency employee. As such, Proposal 2 directly interferes with management's right to assign work under section 7106(a)(2)(B). See id.

The right to assign work under section 7106(a)(2)(B) also includes the rights to determine the particular duties to be assigned, to decide when work assignments will occur, and to designate to whom or what positions the duties will be assigned. See, for example, Federal Professional Nurses Association, Local 2707 and U.S. Department of Health and Human Services, Division of Federal Employee Occupational Health, Region III, 43 FLRA 385, 392 (1991) and DoD Dependents Schools, 29 FLRA at 779.

Proposals 5 and 6 dictate the specific subjects to be assigned to teachers of two classes. Consistent with their plain wording, the proposals would eliminate management's discretion to determine the number and types of subjects to be assigned to those particular teachers. In this regard, the Authority determined in DoD Dependents Schools that management's right to determine the particular duties to be assigned to teachers "encompass[es] the right to assign the number of subjects deemed necessary to fulfill its mission." 29 FLRA at 779. As Proposals 5 and 6 prescribe the specific subjects to be taught in particular classes and exclude all other subjects, we find that the proposals directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.(2)

As we did with respect to Proposals 1 and 7, we assume that Proposals 5 and 6 are arrangements for employees adversely affected by management's exercise of its right to assign work. However, in the same manner as Proposals 1 and 7, Proposals 5 and 6 mitigate the adverse effects of the exercise of this right by imposing a blanket prohibition on its exercise. As such, we find that Proposals 5 and 6 are nonnegotiable because they excessively interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See VA, Syracuse, 44 FLRA at 835. See also DoD Dependents Schools, 29 FLRA at 780 (proposal limiting number of subjects that could be assigned to a teacher held to excessively interfere with right to assign work).

VI. Proposal 3

Temporarily assign G[eneral] E[quivalency] D[iploma] students to other teachers until the overloaded G.E.D. classroom is reduced in number.

A. Position of the Agency

The Agency contends that Proposal 3 is nonnegotiable because it conditions the right to assign work "on the manageability of the employee's workload and precludes the Agency from applying other factors in its decisions regarding the assignment of work." Statement of Position at 5.

B. Analysis and Conclusions

As noted above in connection with Proposals 2, 5, and 6, management's right to assign work under section 7106(a)(2)(B) of the Statute includes the rights to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. Proposal 3 would prevent management from assigning the teaching of G.E.D. students to a single teacher until the requirements of the proposal have been satisfied. Such restrictions on an Agency's ability to assign duties to employees directly interfere with the right to assign work. National Federation of Federal Employees, Local 29 and U.S. Department of the Army, Engineer District, Kansas City, Missouri, 45 FLRA 603, 616-17 (1992).

As we did with respect to the proposals previously considered in this case, we assume that Proposal 3 constitutes an arrangement for employees adversely affected by management's exercise of its right to assign work. Having done so, however, we find that the record provides an insufficient basis on which to conclude that the proposal constitutes an appropriate arrangement. In this regard, there is no explanation of the criteria to be applied to determine whether the existing G.E.D. classroom is "overloaded" or when that situation would no longer exist. Furthermore, the record is silent concerning the likely duration of the student overload. That is, there is no indication as to how long the proposal would affect the exercise of the Agency's right to assign work. Moreover, we cannot ascertain either from the proposal's plain wording or the record whether the proposal requires that the G.E.D. curriculum be taught by teachers receiving overflow students from the existing G.E.D. class. That is, it is unclear whether the proposal mandates the Agency to assign that function to such teachers and, if it does, what effect that mandate would have either on affected employees or the Agency's operations.

As the record does not provide a basis for determining that Proposal 3 constitutes an appropriate arrangement, and as the proposal directly interferes with management's exercise of its right to assign work under section 7106(a)(2)(B) of the Statute, the proposal is nonnegotiable. See American Federation of Government Employees, National Council of SSA Field Operations, Locals (C-220) and U.S. Department of Health and Human Services, Social Security Administration, District Office, Warren, Ohio, 47 FLRA 1304, 1309-10 (1993). We note, in this connection, that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet this burden acts at its peril. Id. at 1310.

VII. Proposal 8

The Principal [T]eacher to develop a team approach to solving problems and concerns in the Education Department.

A. Position of the Agency

The Agency asserts that Proposal 8, "which requires the Principal Teacher to perform certain duties[,] abrogates" its right to assign work. Statement of Position at 7.

B. Analysis and Conclusions

Proposals that require the assignment of specific duties to particular individuals, including management officials, directly interfere with management's right, under section 7106(a)(2)(B) of the Statute, to assign work. See, for example, Fort Carson, 48 FLRA at 176-77. The Agency interprets Proposal 8 as requiring the Principal Teacher to undertake certain tasks. As the Agency's uncontradicted interpretation is consistent with the proposal's plain wording, we adopt it for purposes of our decision. Consequently, as the proposal assigns the responsibility to develop a team approach to address problems and concerns to a particular management official, we conclude that it directly interferes with management's right to assign work. See, for example, Id., at 177.

As we did with regard to the other proposals, we will assume that Proposal 8 constitutes an arrangement. However, we find that the arrangement is not appropriate because it excessively interferes with the right to assign work. The Union does not identify the specific benefits afforded employees by requiring management to assign the described function only to the specified management official. Moreover, it is not otherwise apparent to us how restricting management's right to assign work by requiring that the "Principal [T]eacher" develop a team approach to solving problems mitigates the adverse impact on employees of the reorganization. It is well established that the parties bear the burden of creating a record upon which the Authority can base a negotiability determination. A party acts at its peril when it fails to meet that burden. See, for example, Fort Carson, 48 FLRA at 178.

As the Union has not identified the specific benefits to employees afforded by requiring the Agency to assign the specified function only to the identified management official, and as such benefits are not otherwise apparent to us, we find that the burden imposed on management's right to assign work outweighs whatever benefits the proposal might afford employees. Consequently, we conclude that Proposal 8 is not an appropriate arrangement because it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute, and, therefore, the proposal is nonnegotiable. See id.

VIII. Order

The petition for review is dismissed.




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

1. The Union's position, as contained in its petition for review, applies to all of the disputed proposals. Therefore, it will not be repeated for the other proposals.

2. The fact that Proposals 5 and 6 reflect course content established by the Agency following the Education Department's reorganization does not alter our conclusion. The proposals, n