49:0679(64)NG - - Laurel Bay Teachers Association OEA / NEA and DOD Stateside Dependents Schools, Laurel Bay Schools, Laurel Bay, SC - - 1994 FLRAdec NG - - v49 p679



[ v49 p679 ]
49:0679(64)NG
The decision of the Authority follows:


49 FLRA No. 64

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

LAUREL BAY TEACHERS ASSOCIATION

OEA/NEA

(Union)

and

U.S. DEPARTMENT OF DEFENSE

STATESIDE DEPENDENTS SCHOOLS

LAUREL BAY SCHOOLS

LAUREL BAY, SOUTH CAROLINA

(Agency)

0-NG-2155

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

April 5, 1994

_____

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), and concerns the negotiability of three proposals.(2)

Proposal 1 provides that the Agency may permit a monthly Union meeting during duty time after the instructional day is over. Proposal 1 does not directly interfere with the Agency's right to assign work and is negotiable.

Proposal 2 provides that if the reason for involuntarily reassigning an employee no longer exists, the employee will, at the start of the following school year, have the option of returning to the school location/grade/subject area from which the employee was involuntarily reassigned. Proposal 2 directly and excessively interferes with management's right to select from any appropriate source and is nonnegotiable.

Proposal 3, which requires the Agency to give priority consideration to current unit employees who have applied for vacancies or indicated a desire to transfer to vacant unit positions, does not directly interfere with the Agency's right to select from any appropriate source and is negotiable.

II. Proposal 1

Article 5-Association Rights

Section 3(c). The school may permit a monthly Association meeting after the instructional day is over but still during the duty day, i.e. (3:15 p.m.). No internal [U]nion business will be discussed during this time.

A. Positions of the Parties

1. Agency

The Agency argues that, as interpreted by the Union, Proposal 1 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency contends that the plain wording of Proposal 1 "would allow the [Agency] to determine whether to permit a monthly [Union] meeting after the instructional day is over." Statement of Position at 2. However, the Agency asserts that the Union's explanation of the proposal's intent as set forth in the petition for review demonstrates that the Union seeks to require management to allow such meetings. In this regard, the Agency asserts that the proposal "would require management to authorize attendance at [Union] meetings on duty time" and would limit the assignment of duties during the last 30 minutes of the duty day. Id. Accordingly, the Agency argues that Proposal 1 directly interferes with management's right to assign work and is nonnegotiable.

2. Union

The Union states in its petition for review that Proposal 1 will "allow the [Union] at some time during the month to have a meeting during the duty day[,]" but maintains in its response that, based on the proposal's use of the word "may," the "holding of the meeting is at management's discretion." Petition for Review at 2; Response at 3. The Union contends that because the meeting will occur only with management's permission, the proposal does not interfere with management's right to assign work.

B. Analysis and Conclusions

We conclude that Proposal 1 does not directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute and is negotiable.

Proposal 1 provides that the Agency may permit a monthly Union meeting during duty time after the instructional day is over and specifies that no internal Union business will be discussed during that time. The Agency acknowledges that the plain wording of Proposal 1 "would allow the [Agency] to determine whether to permit a monthly [Union] meeting after the instructional day is over[.]" Statement of Position at 2. However, the Agency argues that under the Union's interpretation of Proposal 1 in the petition for review, the Agency is required to allow the meeting and, therefore, the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The Union specifically states that the meeting described in Proposal 1 will be held only "at management's discretion." Response at 3. This interpretation is consistent with the plain wording of the proposal, and we adopt it for the purposes of this decision. See, for example, Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, Washington, D.C., 47 FLRA 954, 960 (1993). As Proposal 1 provides only that the Agency "may" permit a monthly meeting, we find that the proposal in no way limits management's ability to assign duties and, therefore, does not directly interfere with management's right to assign work.

Accordingly, for the foregoing reasons, we conclude that Proposal 1 is negotiable.

III. Proposal 2

Article 10-Classroom Assignments

Section 4. In the event the reason for the involuntary reassignment no longer exists, the employee will have the option of return to the school location/grade/subject area from which they were involuntary [sic] transferred at the start of the following school years.

A. Positions of the Parties

1. Agency

The Agency argues that Proposal 2 directly and excessively interferes with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. The Agency notes that the proposal applies to all reassignments of bargaining unit employees. The Agency contends that the proposal "does not state whether a position for which the employee is qualified still exists at the former location" and does not preserve management's right to determine whether to fill vacant positions. Statement of Position at 4. Citing 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 (1992) (HCFA), the Agency maintains that the proposal eliminates management's discretion in filling the vacancies involved.

The Agency further contends that Proposal 2 directly and excessively interferes with management's right to determine the qualifications needed for positions under section 7106(a)(2)(B) of the Statute because the proposal prevents management from determining whether "the employee[s] [are] no longer [] qualified for the position[s] from which they were reassigned." Id. at 3.

Additionally, the Agency maintains that Proposal 2 directly and excessively interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute because it restricts management's discretion to determine which employee to assign to a position and "would not permit management to take into account any change in circumstances affecting the position the employee left" or to determine that it has "a greater need for the employee's services" in another position. Id. at 4.

2. Union

The Union contends that Proposal 2 is an appropriate arrangement for teachers who have been involuntarily reassigned by management where the reason for the reassignment no longer exists. The Union argues that the proposal is similar to a proposal found negotiable in National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, Topeka, Kansas, 21 FLRA 380 (1986) (Department of the Army) because it "requires management to return employees to their former positions only if and when their former positions are vacant and when the reason for the involuntary reassignment no longer exists." Response at 3. The Union acknowledges that Proposal 2 imposes a "burden on management" by requiring the Agency to reassign employees to positions that they would normally hold when those positions are vacant and management has decided to fill them. Id. at 4. According to the Union, this burden is "slight when compared to the dramatic imposition of the reassignment." Id. The Union also notes that by providing that employees be reassigned at the start of the following school year, the proposal "leaves flexible at what point the reassignment is to occur[.]" Id.

B. Analysis and Conclusions

We conclude that Proposal 2 directly and excessively interferes with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute and, therefore, is nonnegotiable.

Proposals that require management to fill vacancies from a single source directly interfere with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. See, for example, HCFA, 44 FLRA at 1486-88 (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) (Naval Air Station) (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).

Proposal 2 requires management to allow employees who were involuntarily reassigned the option of returning to their former school location/grade/subject area at the start of the school year if the reason for the involuntary reassignment no longer exists. The Union explains that Proposal 2 applies only where the employees' former positions are vacant and management has decided to fill them. However, by requiring management to give employees who were involuntarily reassigned the option of returning to those vacant positions, Proposal 2 limits management in the exercise of its right to select from any appropriate source. Accordingly, Proposal 2 directly interferes with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. See HCFA and Naval Air Station. See also American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, San Jose District, San Jose, California, 46 FLRA 322, 329 (1992).

Having found that Proposal 2 directly interferes with management's right to select from any appropriate source, we next consider whether the proposal is nevertheless negotiable as an appropriate arrangement 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 176 (1994) (Member Armendariz concurring in part and dissenting in part). 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.

The Union claims that the proposal is an arrangement for employees adversely affected by involuntary reassignments. Even assuming that Proposal 2 is an arrangement, we find that the proposal is not an appropriate arrangement because it excessively interferes with management's right to select from any appropriate source.

As we noted above, 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. Id. In weighing those needs in this case, we note that the Union contends that the burden on management of reassigning employees to positions that they would normally hold when there are vacancies that management intends to fill is "slight when compared to the dramatic imposition of the reassignment." Response at 4. Further, the Union notes that the proposal "leaves flexible at what point the reassignment is to occur[.]" Id. However, the Agency asserts that some employees "may no longer be qualified for the position[s] from which they were reassigned" and that Proposal 2 excessively interferes with management's right to determine the qualifications needed for the vacant positions. Statement of Position at 3.

The proposal applies to all bargaining unit employees who were involuntarily reassigned when: (1) the reasons for their involuntary reassignments no longer exist; (2) their former positions are vacant; and (3) management has decided to fill the positions. Although the proposal benefits such employees by giving them the option of returning to their former school location, grade, and/or subject area, it provides this benefit without addressing the employees' current qualifications for the positions.

In its statement of position, the Agency interprets Proposal 2 as, among other things, preventing the Agency from determining whether to fill vacant positions and, if it chooses to fill the positions, from determining whether employees remained qualified for those positions. In its response brief, the Union explains that Proposal 2 preserves the Agency's discretion in filling vacant positions but does not dispute the Agency's interpretation that the proposal would prevent management from determining employees' qualifications for vacant positions. The parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). In the absence of any indication by the Union or from the plain wording of the proposal that the proposal preserves the Agency's right to determine employees' qualifications, we find that the proposal would preclude management from determining whether any of the employees are "no longer [] qualified for the position[s] from which they were reassigned." Statement of Position at 3. Such a burden on management's right, under section 7106(a)(2)(C) of the Statute, to determine whether the employees are currently qualified for the positions from which they were reassigned is substantial because the proposal applies to all involuntary reassignments of bargaining unit employees.

On balance, we find that the burden placed on management's right to select from any appropriate source outweighs the benefit conferred on employees by the proposal. Accordingly, we conclude that Proposal 2 excessively interferes with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute and, therefore, is nonnegotiable. See American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 29 FLRA 380 (1987) (Proposal 3), petition for review as to other matters denied, 864 F.2d 165 (D.C. Cir. 1988) (proposal precluding management from determining an employee's qualifications for a particular vacancy was found to excessively interfere with management's right to select under section 7106(a)(2)(C) of the Statute).

We note that Department of the Army, cited by the Union, is distinguishable because, unlike the Agency in the instant case, the agency in Department of the Army did not contend that the proposal prevented management from determining employees' qualifications for the positions covered by the proposal.

Having found that Proposal 2 is nonnegotiable because it excessively interferes with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute, we do not address the Agency's remaining arguments on the negotiability of Proposal 2.

IV. Proposal 3

Article 11-Vacancies and Selection

Section 2. The school will first give priority consideration to current unit employees who have applied for vacancies or indicated a desire to transfer to vacant unit positions, but in selecting and appointing applicants for all positions the school may recruit qualified individuals from all appropriate sources.

A. Positions of the Parties

1. Agency

The Agency states that the "clear language of this proposal is negotiable as it leaves management the right to fill positions from any appropriate source." Statement of Position at 5. The Agency contends, however, that the Union's statement of intent is inconsistent with the plain wording of Proposal 3. The Agency argues that if the proposal is interpreted, as stated by the Union, to require management to do more than consider bargaining unit employees for the positions, the proposal violates management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute.

2. Union

The Union states in its petition for review that the purpose of Proposal 3 "is to require management to do more than merely consider an applicant." Petition for Review at 3. In its response, the Union disputes the Agency's assertion that the Union's statement of intent is inconsistent with the plain wording of the proposal. The Union argues that both the proposal and the Union's expressed intent "state that management should give priority consideration for filling unit vacancies to interested current employees." Response at 5. The Union further argues that even assuming that the statement in the petition for review was inconsistent with the plain wording of the proposal, the plain wording controls the Authority's interpretation of the proposal. As the proposal preserves management's ability to "select, recruit, and appoint an applicant from any source[,]" the Union maintains that, consistent with Authority precedent, the proposal is negotiable. Id. (citing National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 43 FLRA 1279 (1992) (Nuclear Regulatory Commission)).

B. Analysis and Conclusions

We conclude that Proposal 3 does not directly interfere with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute and is a negotiable procedure.

A proposal that requires an agency to give priority consideration to employees within a bargaining unit when filling vacancies, but does not prevent management from timely considering other applicants or expanding the area of consideration once bargaining unit employees have been considered, does not directly interfere with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. HCFA, 44 FLRA at 1494. Such a proposal constitutes a negotiable procedure under section 7106(b)(2) of the Statute. Nuclear Regulatory Commission, 43 FLRA at 1288.

Proposal 3 provides in part that the Agency will give priority consideration to current unit employees for vacant unit positions. The Agency acknowledges that the "clear language of this proposal is negotiable as it leaves management the right to fill positions from any appropriate source." Statement of Position at 5. The Agency contends, however, that the Union's statement in the petition for review, that the purpose of Proposal 3 "is to require management to do more than merely consider an applicant[,]" is inconsistent with the plain wording of the proposal. Petition for Review at 3.(3) The Union does not explain what "more than merely consider an applicant" is intended to mean. Id. Rather, the Union explains in its response that Proposal 3 "state[s] that management should give priority consideration for filling unit vacancies to interested current employees." Response at 5.

The explanation in the Union's response is consistent with the plain wording of the proposal. Accordingly, we will interpret the proposal based on the Union's explanation in its response and will not rely on the Union's unexplained statement in the petition for review. See Naval Air Station.

We find that, when interpreted in this manner, nothing in Proposal 3 would prevent the Agency from timely considering applications from outside the Agency or expanding the area of consideration once bargaining unit employees have been considered. Accordingly, we find that Proposal 3 does not directly interfere with management's right to select, but rather constitutes a negotiable procedure under section 7106(b)(2) of the Statute. See HCFA; Nuclear Regulatory Commission.

V. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on Proposals 1 and 3.(4) The Union's petition for review as to Proposal 2 is dismissed.

Opinion of Member Talkin, Dissenting in Part

Contrary to my colleagues' analysis and conclusion, I would not construe Proposal 2 as precluding management from determining employees' qualifications for vacant positions and would, therefore, find that the proposal does not excessively interfere with management's right to select from any appropriate source. Accordingly, I respectfully dissent.

The majority relies upon the absence of a precise statement by the Union specifically refuting the Agency's interpretation that the proposal would preclude the Agency from determining whether previously involuntarily reassigned employees remain qualified for their positions. In my view, the proposal can and should be read in a way that permits negotiations. Moreover, the Union's response supports such a reading. The Union asserts that its proposal concerns employees "who would have been in the original position[s] but for the reassignment" and "only requires management to reassign employees into a position they would . . . be holding." Response at 3. The clear implication of the Union's position is that this proposal is intended to affect only those employees who would still "be holding" their former positions because they had remained qualified for those positions. In other words, as the proposal pertains to employees who would still be occupying certain positions but for the involuntary reassignments, it follows and should be presumed that those employees have retained their qualifications for those positions.

I agree with the Union that this case is substantively indistinguishable from National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, Topeka, Kansas, 21 FLRA 380 (1986) (Department of the Army), in which the Authority found negotiable as an appropriate arrangement a proposal that required an agency that had involuntarily reassigned employees to positions of equal grade at different duty stations to reassign those employees to their former positions if and when such positions were vacant and the agency had made the determination to fill them. Here, as in Department of the Army, the proposal is an arrangement designed solely for employees adversely affected by management's exercise of its right to reassign employees involuntarily. 21 FLRA at 382. Here, as in Department of the Army, "the only effect of the proposal is to require management to select for a vacant position the employee who would still be in that very position if he or she had not been reassigned. . . ." Id. Finally, here, as in Department of the Army, "the burden placed by the proposal on management's right to select is not so significant as to outweigh the disruption to an employee's life caused by assignment to a new duty station and the benefit conferred by the proposal of an opportunity to return to his or her former duty station." Id.

Accordingly, I would find, c