51:1504(123)NG - - AFGE, Council of Locals No. 163 and DOD Contract Audit Agency - - 1996 FLRAdec NG - - v51 p1504
[ v51 p1504 ]
The decision of the Authority follows:
51 FLRA No. 123
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
COUNCIL OF LOCALS NO. 163
U.S. DEPARTMENT OF DEFENSE
DEFENSE CONTRACT AUDIT AGENCY
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
July 3, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(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 a proposal that would place certain limits on temporary duty assignments (TDY). For the reasons that follow, we find that the proposal is outside the duty to bargain under section 7117(a)(1) of the Statute.
The parties agree that no employee will perform involuntary temporary assignments for more than a period of sixty (60) to ninety (90) calendar days in a given fiscal year (October 1 through September 30). Once an employee has performed at least sixty (60) calendar days of involuntary temporary assignment in one fiscal year, he will be exempt from performing any temporary assignments for the remainder of that fiscal year. No employee will be expected to perform more than ninety (90) calendar days of involuntary temporary assignment. Temporary assignments for which an employee has volunteered but were not announced in writing and made available to other employees, will not be considered in satisfying the sixty (60) to ninety (90) calendar day maximum. If an employee has satisfied his temporary assignment requirement (sixty to ninety days) in a given year, and the Employer determines that there remains a need for the continued selection of employees, then the next least senior employee will be selected.
The Agency's mission is to perform contract audits and provide necessary accounting and financial advisory services to the Department of Defense and other Government agencies as requested. The Agency consists of headquarters, a field detachment and five regions. The Northeastern Region, where this negotiability dispute arose, covers nine states and some overseas locations. The region consists of field audit and other offices. According to the Agency's undisputed statement, it has "a highly fluctuating and dynamic workload[,]" requiring "flexibility in assigning employees to meet customer needs." Statement of Position at 1. It is also undisputed that, as the Agency points out, because of the geographical dispersion of work sites and fluctuating workload, it is often necessary to temporarily assign personnel to sites away from their regular duty stations, and employees may have to be temporarily assigned several times during a fiscal year. Consequently, employees may accumulate more than 90 days on temporary assignments over that period.
IV. Positions of the Parties
The Agency argues that the proposal restricts its ability to determine: (1) the duration of a temporary assignment; (2) which employee will be designated for the assignment; and (3) when the assignment will occur. Therefore, in the Agency's view, the proposal directly affects the exercise of management's right to assign work under section 7106(a)(2)(B) of the Statute. In addition, the Agency asserts that, by restricting temporary assignments to 90 days, the proposal affects the exercise of its right to assign employees under section 7106(a)(2)(A). The Agency argues that the proposal does not concern matters set forth in section 7106(b)(1) and is not an appropriate arrangement under section 7106(b)(3). In this latter regard, the Agency points out that where there is a lack of work at an employee's permanent duty station, and the employee has satisfied the TDY obligation, "he could not be assigned to another location to avoid a layoff." Statement of Position at 2-3. The Agency does not specifically respond to the Union's assertion that the proposal constitutes a negotiable procedure under section 7106(b)(2) of the Statute.
The Union asserts that "it would like to negotiate 'on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty or on the technology, methods, and means of performing work[.]'"(2) Reply Brief at 1. The Union contends that "[t]he assignment of personnel to temporary duty certainly falls under [section] 7106(b)(1), (2) and (3) of the Statute." Union's Supplemental Brief at 1. The Union asserts that, in a temporary duty assignment, "an individual is assigned to an organizational subdivision, for a specific work project and for a specific tour of duty." Id. The Union maintains that "the method of selection" for temporary duty assignments falls under section 7106(b)(2). Id. With respect to section 7106(b)(3), the Union asserts that "[t]he length of the assignment could surely adversely affect many of the individuals within the bargaining unit . . . ." Id.
Noting that the parties had negotiated on other matters relating to TDY, the Union states that the matter addressed by the disputed proposal "is the length of time for such assignments." Union's Supplemental Brief at 1. The Union asserts that the proposal is an attempt to minimize the hardship to employees, while accommodating the expressed concern of management's chief negotiator "that the same people would be doing all the TDY, since they had the lowest seniority (our present method of selecting individuals for TDY)." Reply Brief at 2. The Union contends that, under the proposal, an employee currently on a TDY assignment "remains on TDY until his assignment is complete[.] [H]e doesn't return to his permanent duty station just because his 90 days [are] up." Reply Brief at 2. The Union also states that:
[i]n a geographical area where we have exhausted the list and there is still a need to send people TDY [sic], the process starts over again with the person with the least seniority. An individual would not be exempt because he had completed 90 days TDY [sic] if there is a continued need for the Agency [to make temporary duty assignments].
V. Analysis and Conclusions
A. Meaning of the Proposal
In interpreting a disputed proposal, the Authority first looks to its plain wording and any union statement of intent. If the union's statement of intent is consistent with the proposal's plain wording, the Authority adopts that statement for the purpose of construing what the proposal means and, based on its meaning, deciding whether the proposal is within the duty to bargain. E.g., American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 138-39 (1995). Where a proposal is silent as to a matter, a union statement clarifying the matter will be adopted if it is otherwise consistent with the proposal's wording. E.g., National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 737 (1996) (Laurel Bay). When a union's explanation is not supported by a reasonable construction of the proposal, the explanation is deemed inconsistent with the proposal's plain wording, and the Authority does not adopt it for the purpose of determining whether the proposal is within the duty to bargain. E.g., International Federation of Professional and Technical Engineers, Local 3 and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 51 FLRA 451, 459 (1995) (Member Armendariz concurring as to other matters) (Philadelphia Naval Shipyard).
The plain language of the proposal establishes several restrictions on TDY assignments:
- The first three sentences limit the duration of TDY by establishing that: (1) performance of at least 60 days of TDY will exempt an employee from further temporary assignments, and (2) no employee will perform more than 90 days of TDY in a fiscal year. These sentences limit, in the aggregate, the number of days of TDY that may be assigned to an employee and limit the duration of any individual TDY assignment to a maximum of 90 days.
- The second sentence also exempts an employee who has performed at least 60 days' TDY from further assignments. Although the Agency could assign an employee to 90 days of TDY, the Agency could neither make that assignment to an employee who already had performed at least 60 days' TDY, nor make an individual assignment lasting in excess of 90 days.
- The fourth sentence provides that TDY assignments that were not announced in writing and made available to other employees, for which employees volunteer, are not considered in calculating the volunteers' 60 to 90 day maximum.(3)
- The fifth and final sentence of the proposal states, in effect, that, after an employee has performed TDY for 60 to 90 days, additional TDY assignments must be performed by other, less senior, employees.
We find that the Union's statement that employees are required to complete assignments where doing so would result in an employee accumulating more than 90 days of TDY directly conflicts with the plain wording of the proposal, which precludes the Agency from: (1) making any individual TDY assignment that lasts more than 90 days,(4) and (2) assigning any TDY to an employee who has already performed at least 60 days' TDY during the same fiscal year. We note, in this regard, that the proposal expressly prescribes what will occur when an employee has satisfied "his temporary assignment requirement (sixty to ninety days)": subsequent TDY assignments are made to less senior employees. Accordingly, this Union statement is not adopted in determining whether the proposal is within the duty to bargain. E.g., Philadelphia Naval Shipyard, 51 FLRA at 459.
With respect to the Union's statement that the exemption from further TDY does not apply when all employees on the TDY list have satisfied their TDY obligations, the proposal does not explicitly address this situation. Although the proposal's limitation on TDY could be read to bar assignments even after all employees have satisfied their obligations, the proposal neither expressly bans further temporary assignments nor prescribes the steps to be followed when the list is exhausted. In addition, the Agency does not argue that the proposal bars resort to the TDY list, if more assignments are necessary, after all employees have met their TDY obligations.
The Union asserts that it was "perfectly clear to all parties" that when all employees on the TDY roster had satisfied their TDY obligations, the selection process would begin again if there was a continuing need for temporary assignments. Reply Brief at 2. The record supports this assertion. Specifically, according to the Union, the Agency's proposal on TDY assignments stated that, after an employee had performed 180 days' TDY during a fiscal year, the employee would "be exempt from performing any additional temporary assignments for the remainder of that fiscal year, unless everyone in the FAO [Field Audit Office] has already been on a temporary assignment and there is a continuing mission need for temporary assistance." Petition for Review at 2. The Agency does not dispute this description. In addition, as noted above, the Union's proposal does not address this particular situation. This omission, together with the absence of Agency arguments to the contrary, leads us to conclude that the parties understand that, as the Union states, the assignment process would begin again with the least senior employee after all employees have met their TDY obligations. Accordingly, we will, under Laurel Bay, adopt the Union's statement.
To summarize, based on the Union's statements, we construe the proposal to mean that, except for certain TDY assignments for which employees volunteer, the Agency would be prohibited from making any individual TDY assignment that lasts longer than 90 days and would require the termination of a TDY assignment once the assigned employee has accumulated 90 days on TDY. In addition, we find that, except for a situation where all employees have completed their TDY obligation and the Agency needs to make further TDY assignments, the proposal would prevent the Agency from assigning any TDY to an employee who has performed at least 60 days' TDY during a fiscal year.
B. The Proposal Does Not Concern Matters Covered by Section 7106(b)(1)
In accordance with the principles stated in VAMC, Lexington, we first examine the Union's contention that the proposal is bargainable under section 7106(b)(1).(5) As relevant here, the Authority stated in VAMC, Lexington that, in determining whether a proposal concerns a matter covered by section 7106(b)(1), it would "analyze whether the proposal . . . relates to: i) the numbers, types, and grades; ii) of employees or positions; iii) assigned to any organizational subdivision, work project, or tour of duty." Id., 51 FLRA at 394 (footnote omitted).
For the following reasons, we conclude that the proposal does not concern the number, type or grade of employees that may be assigned TDY. Union's Supplemental Brief at 1. Aside from its conclusory invocation of section 7106(b)(1), the Union does not in any way explain how the proposal operates to affect the numbers, types or grades of employees. To the contrary, the Union clearly states that the proposal concerns the "length of assignment[s]" that the Agency has already determined to make. Union's Supplemental Brief at 1.
Although not posited by either party, it is indeed possible, as recognized by our dissenting colleague, to envision circumstances where the proposal's restrictions on the duration of individual temporary assignments, and on the accumulation of days on TDY, might cause the Agency to assign additional employees to an organizational subdivision, work project, or tour of duty, thereby affecting the numbers of employees. For example, if the Agency has a need for the equivalent of 180 work days of temporary effort to complete a work project, and it can assign one employee to work only 90 of those work days, an application of simple mathematics points to the prospect of two employees (working 90 days each) instead of one employee (working 180 days). In this circumstance, the Agency presumably could assign the two at the same time or consecutively.
However, the foregoing consequence is unsupported by the record and pure speculation by the Authority. We do not read the record before us to support finding that any consequences affecting numbers of employees follow from the proposal. In particular, we are not persuaded that the Agency statements relied on by our dissenting colleague support a conclusion that the proposal would engage the parties in negotiating over the numbers of employees assigned to a particular organizational subdivision, work project or tour of duty. In view of the Union's clear statement that the matter addressed by the proposal is the "length of assignment[s]" the Agency has already decided to make, Union's Supplemental Brief at 1, and the fact that the proposal is plainly written to affect such individual assignments, viewing the proposal as affecting "numbers of employees" is akin to squeezing a round peg into a square hole.(6) The Union's bare assertion that the proposal concerns "numbers of employees" within the meaning of section 7106(b) matters simply does not transform the proposal into one that does so.
In addition, mathematically increasing the number of employees is not the only option available to the Agency. Thus, for example, one could also envision circumstances when the Agency would redesign the project more efficiently; or decide that only half of the project needs to be completed; or contract to others the work that needs to be done. In our view, it is not for the Authority to choose what it considers the most "reasonable" from among speculative consequences of a proposal.
In sum, we are unable to conclude on the basis of the record before us that this proposal, which is so clearly aimed at affecting the duration and order of TDY assignments during any one fiscal year, concerns the numbers of employees or positions assigned to a organizational subdivision, work project, or tour of duty under section 7106(b)(1).
Nor does the proposal concern the types of employees who would be assigned to perform temporary duty. The Authority has determined that the term "types of employees," as used in section 7106(b)(1), "refers to management's right to make determinations based on work or job-related differences between employees." U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 47 FLRA 512, 519 (1993). It is not argued or apparent that seniority, which is determined by as little as a 1-day difference in dates employees entered on duty, constitutes a work or job-related difference between employees.(7) Therefore, there is no basis for concluding that the proposal concerns the types of employees that management must select for TDY assignments.
Finally, nothing in the proposal addresses the grades of employees who would be assigned to perform temporary duty. In fact, the Union states that it and the Agency have "already negotiated" that selections will be from among "fully successful GS-12's." Union's Supplemental Brief at 1 (emphasis added). As such, the grades of employees to be assigned TDY have already been determined, and that determination is not affected by the proposal.
In sum, nothing in the plain wording of the proposal, or the Union's interpretation of it, supports a conclusion that it concerns the numbers, types, and grades of employees who will perform TDY. Consequently, even assuming that temporary duty entails assignment to an organizational subdivision, work project, or tour of duty, within the meaning of section 7106(b)(1), the Union has not established that the proposal falls within the scope of section 7106(b)(1).
C. The Proposal Affects the Exercise of Management Rights under Section 7106(a)(2)
Proposals that limit the duration of work assignments affect the exercise of management's right to assign employees under section 7106(a)(2)(A) of the Statute and to assign work under section 7106(a)(2)(B). E.g., American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, Modesto, California, 48 FLRA 489, 491-92 (1993). The proposal requires the Agency to terminate TDY when the assigned employee accumulates 90 days' TDY, regardless of whether the work assignment has been completed, and prevents management from assigning an employee to temporary duty if the assignment will require in excess of 90 days to complete. Therefore, the proposal affects management rights to assign employees and work. E.g., id. at 492.
D. The Proposal is not a Procedure under Section 7106(b)(2)
The Union provides no arguments or authority to support its bare assertion that the proposal constitutes a method of selection for TDY and is negotiable as a procedure to be followed by management in exercising its management rights. When a union fails to support such an assertion, the Authority has declined to address it. American Federation of Government Employees, Council of Marine Corps Locals, Council 240 and U.S. Department of the Navy, U.S. Marine Corps, Washington, D.C., 50 FLRA 637, 640 n.3 (1995). Accordingly, the Union's assertion provides no basis for concluding that the proposal is within the duty to bargain under section 7106(b)(2) of the Statute.(8)
E. The Proposal is not an Appropriate Arrangement under Section 7106(b)(3)
The standard for determining whether a proposal is within the duty to bargain under section 7106(b)(3) is set out in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under that standard, the Authority initially determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. The alleged arrangement must be "tailored" to compensate or benefit employees suffering the adverse effects attributable to the exercise of management's right(s). E.g., National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 184 (1994) (Member Armendariz concurring in part and dissenting in part) (Patent and Trademark Office). If the proposal is intended to be an arrangement, the Authority then determines whether the proposed arrangement is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right(s). KANG, 21 FLRA at 31-33.
We note that similar proposals were previously found by the Authority to constitute arrangements. See Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard, 31 FLRA 131, 141 (1988), order denying reconsideration as to other matters, 32 FLRA 98 (1988) (Norfolk Naval Shipyard) (provision limiting details or loans of employees to 90 days); American Federation of Government Employees, Local 1658 and U.S. Department of the Army, Army Tank-Automotive Command, Warren, Michigan, 44 FLRA 1375, 1380 (1992) (Tank-Automotive Command), (provision limiting assignments in the continental United States to no more than 15 work days). However, subsequent to the decisions in Norfolk Naval Shipyard and Tank-Automotive Command, the Authority concluded, based on various court decisions, that "an arrangement must be tailored to compensate or benefit employees suffering adverse effects flowing from the exercise of management's rights and cannot be so broad in its sweep that it applies to all employees regardless of whether they are likely to be adversely affected by management action that comes within the purview of management's rights." Patent and Trademark Office, 49 FLRA at 184. As the decisions in the Norfolk Naval Shipyard and Tank-Automotive Command did not address tailoring, they do not support a conclusion that this proposal is an arrangement because their reasoning concerning that question has been effectively overruled.
Here, the Union asserts that the duration of TDY assignments "could surely adversely affect many of the individuals within the bargaining unit, in that it disrupts such things as, but not limited to, spousal arrangements on numerous items, personal expenses, child care, and car pools." Union's Supplemental Brief at 1. However, the Union does not assert that all bargaining unit employees would experience disruptions. Furthermore, the disruptions described by the Union would not apply to all employees covered by the proposal. For example, spousal arrangements would only be a consideration for married employees; concerns about child care obviously would not arise for childless employees; and car pool arrangements would not be a factor for employees not in car pools. Moreover, the Union fails to explain, and it is not otherwise apparent, how TDY affects personal expenses.
In addition, the Agency notes, without contravention by the Union, that each employee covered by this proposal signs an agreement "acknowledging that his condition of employment will include rotation and reassignments to other than their [sic] permanent duty station in order to accomplish the [A]gency's mission." Statement of Position at 2. As such, employees can anticipate that TDY assignments will be a regular part of their jobs. Additionally, as explained supra note 3, the proposal does not exclude all voluntary TDY assignments from the maximum duration of time spent by an individual employee on TDY. It seems contrary to common sense to view employees as adversely affected by time spent on TDY assignments for which they have volunteered. In sum, we find that the proposal lacks the tailoring necessary to constitute an arrangement under section 7106(b)(3).(9) See, e.g., Philadelphia Naval Shipyard, 51 FLRA at 459.
Even if we were to assume, without deciding, that the proposal constitutes an arrangement, for the reasons that follow, we conclude that the proposed arrangement is not appropriate because it excessively interferes with management's rights to direct employees and assign work. In Norfolk Naval Shipyard, 31 FLRA at 141, the Authority found that a similar provision excessively interfered with management's rights to assign employees and work. We find no basis on which to reach a different conclusion in this case. Indeed, balancing under KANG the benefits the proposal affords employees against the impact of the proposal on the Agency's rights, we conclude that Agency employees are less disadvantaged by TDY assignments and would, as a result, receive less benefit from this proposal than the employees in Norfolk Naval Shipyard were afforded by the proposal in that case. We base this conclusion on the fact that each employee covered by the proposal in this case signs an agreement, when entering on duty with the Agency, "acknowledging that his condition of employment will include rotation and reassignments to other than their [sic] permanent duty station in order to accomplish the [A]gency's mission." Statement of Position at 2. Therefore, as previously indicated, employees who accept employment with the Agency can anticipate TDY assignments as a regular part of their jobs. In addition, the Agency claims, and the Union does not dispute, that TDY assignments may benefit employees by permitting them to avoid layoffs. Furthermore, the limitation on the length of TDY assignments is especially detrimental to the Agency's interests because, as the Agency points out, its work "requires a great deal of mobility," and it "often has to detail [employees] to locations other than their permanent duty stations." Statement of Position at 2.
For these reasons, we find that, even if the proposal constitutes an arrangement, the benefit it confers on employees is outweighed by the negative impact on management's ability to exercise its rights to assign employees and work. Therefore, the proposal excessively interferes with the exercise of the rights to assign employees and work under section 7106(a)(2)(A) and (B) of the Statute and is not an appropriate arrangement. KANG, 21 FLRA at 33. As the proposal does not constitute an appropriate arrangement under section 7106(b)(3), it is outside the duty to bargain.
The Union's petition for review is dismissed.
Opinion of Member Wasserman, dissenting:
I would find that the proposal relates to a matter that is negotiable at the election of the Agency under section 7106(b)(1) of the Statute. Accordingly, I dissent.
The majority acknowledges that the effect of the proposal may be to increase the numbers of employees assigned to an organizational subdivision, work project, or tour of duty. I agree with that observation but differ with my colleagues in two respects. First, I believe that this effect is neither "speculative" nor "unsupported by the record." Rather, I note the Agency's statement that details can last more than 90 days; evidence that such details are a common occurrence; the Agency's description of a "highly fluctuating and dynamic workload"; and the requirement that the Agency take into account "customer needs" "in assigning employees." Agency's Statement of Position at 1. Based on this record, it is a reasonable assumption that if the proposal were in effect, the Agency would assign additional employees to meet its mission-related needs. In contrast, I find speculative my colleagues' supposition that the Agency would take certain extreme actions to avoid such additional assignments. In particular, given the nature of the Agency's work, I find it highly unlikely that the Agency would spread out over two fiscal years a project that could not be completed within 90 days. Similarly, I find nothing in the record to suggest that the Agency would use contractors to complete a work project or would permit the 90-day limit to curtail a project and thereby affect its ability to perform its mission. Accordingly, I am convinced that the proposal relates to the numbers of employees assigned either to an organizational subdivision or to a work project.(1) Cf. American Federation of Government Employees, Local 3669, AFL-CIO and Veterans Administration Medical Center, Minneapolis, Minnesota, 2 FLRA 641, 644 (1980) (proposal guaranteeing that nurses would have every other weekend off would force the activity to hire additional nurses in order to accomplish its mission and, therefore, was found determinative of numbers, types, or grades of employees assigned to work project or tour of duty).
Second, I would find that a proposal is encompassed within section 7106(b)(1) if it involves numbers of employees assigned to an organizational subdivision or work project over the course of time. I agree that the cases cited by the majority in note 6 above concerned the concurrent assignment of additional employees, but I do not read those cases, the Statute, or the legislative history to require such concurrence. I note legislative history that defines the first portion of section 7106(b)(1) as referring to "the agency's staffing patterns, including job content." S.Rep. No. 95-969, 95th Cong. 2d Sess. 105 (1978), reprinted in Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (Comm. Print 1979) at 765. I find nothing in the phrase "staffing patterns" to indicate that Congress intended section 7106(b)(1) to apply only to a static view of an agency's workforce. It is far more reasonable to conclude that in referring to "patterns," Congress recognized that staffing may change to meet work needs and that the full range of staffing assignments should be negotiable, at the election of an agency, if they involve assignments to organizational subdivisions, work projects or tours of duty.
Accordingly, as the proposal would require the Agency to assign additional employees to ensure completion of a work project that cannot be performed within 90 days by one employee, I conclude that it relates to the numbers of employees assigned to an organizational subdivision or work project.(2)
(If blank, the decision does not have footnotes.)
Authority's Footnotes Follow:
1. Member Wasserman's dissenting opinion appears at the end of this decision.
2. In light of the Union's assertion that the proposal concerns matters covered by section 7106(b)(1) of the Statute, we requested comments from the parties on the applicability to this case of National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington), and both parties responded.
3. By excluding only certain voluntary TDY days -- i.e., those where the assignments were not announced in writing and made available to other employees -- it is evident that other voluntary TDY service is encompassed by the proposal. The effect of this inclusion is not addressed by either party. However, it appears, for example, that the proposal would not permit the agency to direct further TDY assignments for an employee who has already served 60 days' TDY on any involuntary basis and/or on some voluntary bases (e.g., a voluntary basis where the assignment had been announced in writing and offered to other employees). Similarly, the proposal does not permit an employee to serve more than 90 days' TDY on an involuntary and/or some voluntary bases.
4. The Agency states, without contravention, that "one detail can and has lasted more than 90 days." Statement of Position at 2.
5. In VAMC, Lexington, the Authority stated that, where the parties disagree over whether section 7106(a) or (b)(1) governs the negotiability of a proposal,
the Authority will determine initially whether the proposal concerns matters within the subjects set forth in section 7106(b)(1). If it does, we will not address contentions that those matters also affect the exercise of management's authorities under section 7106(a). Conversely, if we conclude that a proposal does not concern matters within the subjects set forth in section 7106(b)(1), we will then proceed to analyze it under the appropriate subsection of section 7106(a).
Id. at 393.
6. In addition, even if there were an effect on numbers, there is no way to predict whether it would be the numbers assigned at any one time, or over the course of time. The parties have not addressed whether a conceivable indirect effect on "numbers" over the course of time is sufficient to bring a proposal within the meaning of section 7106(b)(1), and this proposition has not been addressed previously by the Authority. We note that the Authority has previously held that a proposal concerns numbers of employees within the meaning of section 7106(b)(1) when it directly affects the assignment of numbers of employees to a particular job or task at any one time. See, e.g., American Federation of Government Employees, Local 1345 and U.S. Department of the Army, Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort Carson, Colorado, 48 FLRA 168, 190 (1993) (required assignment of two employees when work to be performed in certain enclosed areas); American Federation of Government Employees, Local 3302 and U.S. Department of Health and Human Services, Social Security Administration, Dunbar Branch Office, Baltimore, Maryland, 37 FLRA 350, 355-56 (1990) (required assignment of two employees to interview irate or potentially dangerous claimants). We leave to another day, when it is addressed by parties and necessary to resolve, the question of the extent, if any, to which the "numbers of employees," within the meaning of section 7106(b)(1) includes the total number of employees assigned over a period of time.
7. In this regard, the Union asserts that the parties previously agreed that "the method of selection will be the least senior [employee] based on service computation date . . . ." Union's Supplemental Brief at 1.
8. However, it should be noted that, 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, 270-72 (1990), the Authority found that a proposal preventing management from determining the duration of assignments was not a negotiable procedure because it interfered with the agency's rights to assign employees and work.
9. In reaching this conclusion, Member Armendariz reaffirms his consistently held position that a proposal constitutes an "arrangement" within the meaning of section 7106(b)(3) of the Statute only if it is tailored to benefit or compensate only those employees who would suffer an identifiable adverse effect as the result of an exercise of a management right. E.g., Philadelphia Naval Shipyard, 51 FLRA at 461 (concurring opinion).
Member Wasserman Dissenting Opinion Footnotes Follow:
1. The record does not permit a conclusive finding that