54:0807(81)NG - - AFGE Local 3354 and Agriculture, Farm Services Agency, Kansas City Management Office - - 1998 FLRAdec NG - - v54 p807



[ v54 p807 ]
54:0807(81)NG
The decision of the Authority follows:


54 FLRA No. 81

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3354

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

FARM SERVICES AGENCY

KANSAS CITY MANAGEMENT OFFICE

(Agency)

0-NG-2407

DECISION AND ORDER ON NEGOTIABILITY ISSUE

August 31, 1998

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This case is before the Authority on a petition for review of negotiability issues filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition for review contains one proposal, which imposes two requirements. For the following reasons, we conclude that the first sentence of the proposal concerns matters negotiable only at the election of the Agency pursuant to section 7106(b)(1) of the Statute. Accordingly, we dismiss the petition with regard to the first sentence of the proposal, and direct the parties, at the Agency's election, to bargain over that sentence. However, we find that the second sentence of the proposal is within the duty to bargain, and accordingly, we direct the Agency to bargain over the second sentence of the proposal.

II.Proposal

The Union's proposal is as follows:

The Agency further agrees to maintain these agreed upon numbers, types, and grades of positions/employees assigned to the FSA-St. Louis divisions by taking whatever actions are necessary to fill/backfill vacancies as they arise within 90 calender days from the position becoming vacant, as long as the Agency has sufficient Salaries & Expense Appropriations to do so. The parties agree to jointly request FSIP Fact-Finding and decision-making should a dispute arise regarding whether the Agency has sufficient appropriations to maintain these staffing levels in the future.

III. Background

On June 25, 1997, the Federal Service Impasses Panel (the Panel) issued its Decision and Order in Case No. 97 FSIP 34. As relevant here, the Panel directed the parties to adopt the Agency's status quo proposal concerning the numbers, types, and grades of positions that would be in effect at the Agency's St. Louis office. Specifically, the Panel decision established staffing levels for certain bargaining unit positions in that office. However, the Panel left unresolved one Union proposal that would require the Agency to "maintain" the numbers, types, and grades of employees mandated by the Panel decision.

The Union subsequently requested, and the Agency provided, an allegation of non-negotiability regarding this proposal. The Union then initiated a request for review of the negotiability of the proposal with the Authority.

IV. Positions of the Parties

A. Union's Position (1)

In its Petition, the Union argues that "[n]othing in the disputed language conflicts with a management right." Petition for Review (Petition) at 3. According to the Union, the proposal "does not specify" how the vacancies would be filled, or "whether the positions would be filled as permanent positions." Id. at 2. Assuming, arguendo, that the proposal affects management's rights under section 7106(a), the Union contends that under the Authority's "dominant requirement" test, the proposal is negotiable "because the 7106(b)(1) requirement is dominant." Id. at 3. Although the Union does not specify what that section 7106(b)(1) requirement is, the Union does allege that "the proposal addresses implementation of staffing level decisions that have already been made" by the Panel in its Decision. Id. (emphasis added).

Additionally, the Union contends that "in its totality" the disputed language constitutes a procedure within the meaning of section 7106(b)(2) of the Statute, and does not "directly interfere" with management's rights under section 7106(a). Id. Specifically, the Union asserts that the proposal "is the final part of the procedure that has been followed, including the setting of staffing levels for the St. Louis organizational component by the [Panel,]" because the proposal provides for "fact-finding by the [Panel] as a process to address disputes concerning budgetary sufficiency" when the Agency fails to fill the vacant positions. Id.

According to the Union, should the Authority determine that the proposal directly interferes with a management right, then the proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Id. The Union argues that when "the Agency has determined to cause or permit the number of positions at the St. Louis office to become smaller[,]" the proposal would "ameliorate the adverse effects of increased difficulty and stress by bringing the number of employees who are required to perform work nearer to the level that have historically performed it, to the level that the [Panel] directed." Id.

Finally, should the Authority conclude that a portion of the disputed language comes within the duty to bargain, the Union requests severance of the proposal. Id. at 1.

B. Agency's Position (2)

In its Declaration of Non-Negotiability, the Agency's sole statement with regard to this proposal is that the disputed language "prevents management from exercising their rights under 5 U.S.C. 7106(a)(1) & (2)." Declaration at 1.

V. Meaning of the Proposal

In interpreting a disputed proposal, we look to its plain wording and any union statement of intent. If the union's explanation of the proposal is consistent with the proposal's plain wording, then we adopt that explanation for the purpose of construing what the proposal means and, based on that meaning, deciding whether the proposal is within the duty to bargain. See, e.g., National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024, 1026 (1997). Where a proposal is silent as to a particular matter, we will adopt a union's statement clarifying the matter if that statement is otherwise consistent with the wording of the proposal. See, e.g., National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 737 (1996).

As plainly worded, the proposal requires the Agency to "maintain," at its St. Louis division, the staffing levels that were established by the Panel decision. To do so, the proposal requires the Agency to take "whatever actions are necessary to fill/backfill" vacancies within 90 days of the time that the position becomes vacant. The Union asserts that "the terms 'fill' and 'backfill' are substantially identical and refer to personnel actions to encumber otherwise vacant positions." Petition at 2. As this statement is consistent with the plain wording of the proposal, we adopt this interpretation for the purpose of assessing whether the proposal is within the duty to bargain.

However, the requirement that the Agency "fill/backfill" vacant positions is dependent on whether the Agency "has sufficient Salaries & Expense Appropriations to do so." Id. Should a dispute arise regarding "whether the Agency has sufficient appropriations to maintain these staffing levels in the future," the proposal requires the parties to jointly request Panel fact-finding and decision-making as to whether the Agency has such sufficient appropriations. Id. As the disputed language is not limited to situations where vacancies arise as a result of management's exercise of its rights to layoff or reassign employees, we interpret the proposal as requiring the Agency to fill vacancies, regardless of the reasons for which those positions become vacant.

VI. Analysis and Conclusions

When presented with a proposal that imposes two or more individual requirements, we assess whether the individual requirements are severable from one another. See, e.g., National Federation of Federal Employees, Local 2119 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 49 FLRA 151 (1994). If severance is requested and practicable, then we sever the proposal and rule on the negotiability of its separate components. See American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-America Program Service Center, 52 FLRA 794, 797-98, 800 1996).

In the instant case, to the extent that we find the proposal affects management's rights, the Union requests that the requirement that the parties seek Panel assistance (the procedural proposal), be severed from the requirement that the Agency maintain its staffing levels (the substantive proposal). As the requirement that the Agency maintain its staffing levels could operate regardless of whether the parties are required to seek Panel assistance in cases of budgetary insufficiency, the substantive proposal is viable apart from the procedural proposal. As severance is practicable in that sense, and as the Union requests that the proposal be severed, we will analyze the procedural proposal separately from the substantive proposal in assessing whether this proposal is within the duty to bargain.(3)

In American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171, 178 (1998) (HUD Council of Locals), the Authority held that in cases where a union disputes an agency's assertion that a proposal affects management's rights under section 7106(a) of the Statute, the Authority will first address whether the proposal affects those 7106(a) rights. If the proposal does not affect management's rights under section 7106(a), or if it constitutes a procedure or an appropriate arrangement within the meaning of section 7106(b)(2) or (b)(3), respectively, then the Authority will direct the parties to bargain over that proposal. Id. However, if the Authority finds that the proposal affects management's rights under section 7106(a), and does not constitute a (b)(2) or (b)(3) matter, then the Authority will address whether the proposal concerns matters encompassed within section 7106(b)(1) of the Statute. Id. (4) If the proposal concerns matters negotiable at the Agency's election under section 7106(b)(1), then the Authority will dismiss the petition for review. See, e.g., American Federation of Government Employees, Council of Prison Locals, Local 171 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 1484, 1495 (1997) (Bureau of Prisons). As the Union in the instant case disputes the Agency's contention that the proposal affects management's rights, we apply the HUD Council of Locals analysis herein.

A. The Substantive Proposal Affects Management'sRight to Determine Whether to Fill VacantPositions.

"[T]he right to take actions pursuant to section 7106(a) of the Statute includes the right to decide not to take such actions[,]" and therefore, proposals obligating management to exercise its rights to hire and assign employees are outside the duty to bargain. American Federation of Government Employees, AFL-CIO, Local 12 and Department of Labor, 18 FLRA 418, 421 (1985). The decision whether to fill vacant positions is encompassed within an agency's rights to hire and assign employees under section 7106(a)(2)(A) of the Statute. See International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 144-46 (1987) (Provision 35). The Authority has consistently held that proposals requiring an agency to fill vacancies interfere with management's rights under section 7106(a) of the Statute. See, e.g., 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, 1465-68 (1992) (Proposal 17) (Health Care Financing); National Treasury Employees Union and Internal Revenue Service, 2 FLRA 281, 282-83 (1979) (second sentence) (NTEU).

In the instant case, the plain wording of the substantive proposal requires the Agency to fill vacant positions only when the Agency has sufficient appropriations to do so. Thus, this case is distinguishable from the above-cited cases, in that the proposals and provisions involved in those cases provided no exceptions to the agencies' duties to fill vacancies. Nevertheless, the substantive proposal in the instant case would require the Agency to fill vacancies in all situations other than where budgetary insufficiency exists, e.g., when the Agency determines that it is operationally inefficient to maintain the number of employees at its St. Louis division. As such, we find that the first sentence of the proposal affects the Agency's right to hire and assign employees.

B. The Substantive Proposal Does Not Constitute An Appropriate Arrangement.

The approach for determining whether a proposal is within the duty to bargain under section 7106(b)(3) of the Statute is set forth in National Association of Government Employees, Local R-14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). Under that approach, we initially determine whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). Proposals that are unrelated to management's exercise of its reserved rights do not constitute arrangements. See, e.g., National Federation of Federal Employees, Local 2015 and U.S. Department of the Interior, National Park Service, Washington, D.C., 53 FLRA 967, 977-78 (1997) (Proposal 2). The purported arrangement must be sufficiently "tailored" to compensate or benefit employees suffering adverse effects resulting from the exercise of management's rights. See, e.g., National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 184 (1994). That is, section 7106(b)(3) brings within the duty to bargain provisions that provide "balm" to be administered "only to hurts arising from" the exercise of management rights. American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1319 (1996).

The substantive proposal requires the Agency to "maintain" its staffing levels, and to "fill/backfill" all vacancies within 90 days. The proposal does not limit this requirement to situations where staffing levels have fallen as a result of management's exercise of its rights, e.g., its right to lay off employees. Rather, the plain wording of this proposal requires the Agency to fill these vacancies, even if those positions have become vacant as a result of voluntary resignation or retirement by employees. As such, the proposal would ameliorate adverse effects flowing from the exercise of management rights only in some instances. In other instances, it would ameliorate adverse effects flowing from voluntary choices by employees, without regard to management's exercise of its rights. As such, the substantive proposal does not provide "balm" only to "hurts arising from" the exercise of management's rights. Therefore, it is not sufficiently tailored to constitute an arrangement, and accordingly, we conclude that the substantive proposal does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

C. The Substantive Proposal Does Not Constitute A Negotiable Procedure.

Once management has made a determination that it will fill vacant positions, a proposal requiring the Agency to post a notice concerning those vacancies constitutes a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See Federal Union of Scientists and Engineers, National Association of Government Employees and Naval Underwater Systems Center, Newport, Rhode Island, 23 FLRA 360, 363 (1986) (Proposal 2) (finding that the proposal was a procedure "to the extent that [it] would require the posting of notice concerning vacancies in bargaining unit positions only, and would not require management to fill such positions or select from any appropriate source").(5) Additionally, once management has decided to fill vacant positions, a proposal requiring the Agency to make a selection "as soon as practicable," when staff shortages create an undue hardship on unit employees, constitutes a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. American Federation of Government Employees, AFL-CIO, Local 1738 and Veterans Administration, Medical Center, Salisbury, North Carolina, 27 FLRA 52, 65 (1987) (Proposal 9) (noting that "the proposal would not require management to fill any vacant position that it had not already decided to fill").(6)

However, the Authority has distinguished proposals that merely govern the procedure an agency will use in announcing or filling vacancies, from proposals that require an agency to actually fill such vacancies. In NTEU, 2 FLRA at 282-84, the Authority found part of a proposal requiring the agency to "announce" a certain percentage of vacancies as upward mobility positions, to constitute a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. However, the Authority found the portion of the proposal requiring the agency to "actually fill positions" violated management's rights to hire and assign employees "or to decide not to take such actions." Id. at 283. Thus, while provisions and proposals requiring an agency to post vacancies constitute negotiable procedures within the meaning of section 7106(b)(2), provisions and proposals requiring an agency to actually fill those vacancies do not constitute negotiable procedures.

In the instant case, the substantive proposal requires the Agency to exercise its right to fill vacancies. Although there is a procedural component to the substantive proposal -- i.e., that management shall fill all vacancies within 90 days -- that procedural component does not alter the fact that the proposal requires the Agency to actually exercise, in the first place, its rights to hire and assign employees.(7) Accordingly, we conclude that the substantive proposal does not constitute a negotiable procedure within the meaning of section 7106(b)(2) of the Statute.(8)

D. The Substantive Proposal Concerns the Number of Employees Assigned to an OrganizationalSubdivision.

The "numbers, types, and grades" phrase in section 7106(b)(1) of the Statute applies to the establishment of staffing patterns, or the allocation of staff, for the purpose of an agency's organization and the accomplishment of the agency's work. See National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024, 1028 (1997). The determination as to whether, and which, positions assigned to an organizational subdivision will be filled concerns the allocation of staff. See National Federation of Federal Employees, Local 2148 and U.S. Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, Albuquerque, New Mexico, 53 FLRA 427, 432 (1997) (Office of Surface Mining) (Proposal 2). A proposal requiring an agency to fill an existing vacant position at an organizational subdivision concerns the number of employees assigned to that organizational subdivision, within the meaning of section 7106(b)(1) of the Statute, because such a proposal would effectively increase the number of employees assigned to the organizational subdivision. Id. at 431 (Proposal 1).

There is no dispute that the Agency's St. Louis division constitutes an organizational subdivision. As the substantive proposal requires the Agency to maintain the current number of positions at that subdivision, it concerns whether the Agency will fill vacant positions. Thus, consistent with Office of Surface Mining, the proposal here concerns the number of employees assigned to an organizational subdivision, within the meaning of section 7106(b)(1) of the Statute. Accordingly, the substantive proposal is negotiable at the Agency's election, and the Union's petition for review with regard to the substantive proposal is dismissed. See Bureau of Prisons, 52 FLRA at 1495.

E. The Procedural Proposal Is Within the Duty to Bargain.

The plain language of the procedural proposal merely requires the parties to jointly "request" intervention and fact-finding by the Panel. Nothing in the Statute precludes the parties from agreeing to make a joint request for assistance from an outside entity. The Agency does not demonstrate that an agreement to request Panel assistance, standing alone, affects any management rights under section 7106(a) of the Statute. Accordingly, we find the procedural proposal to be within the duty to bargain, and we direct the Agency to bargain over it.(9)

VII. Order

We dismiss the petition as to the first sentence. The Agency shall, upon request and in the event it elects to bargain over the first sentence, or as otherwise agreed to by the parties, negotiate over the second sentence of the proposal.




FOOTNOTES:

 

1. Where a union files a petition that meets the requirements of the regulations and an agency fails to file a statement of position, we determine the negotiability of the proposal in question on that record. American Federation of Government Employees, AFL-CIO, Local 3760 and Department of Health and Human Services, Social Security Administration, 33 FLRA 498, 501 (1988). As discussed infra, at footnote 2, the Agency's statement of position was not timely filed, and we will not consider the arguments raised therein -- or the arguments raised in the Union's response to the Agency's statement -- in assessing whether the proposal is within the duty to bargain.

2. The Agency's statement of position was untimely filed. Upon receipt of the statement of position, the Authority ordered the Agency to show cause why its statement of position should be considered. As the Agency did not respond to the Authority's Order to Show Cause, we will not consider the Agency's statement of position in assessing whether the proposal is within the duty to bargain.

3. Unless the Agency is required to take actions to maintain its current staffing levels, there is no need for the parties to seek Panel assistance in order to determine whether the Agency's failure to do so is pursuant to a bona fide budgetary insufficiency exception. Thus, the procedural proposal is dependent for its viability on the substantive proposal. Nevertheless, as discussed above, the substantive proposal is viable apart from the procedural proposal and, therefore, severance is practicable in that respect.

4. However, we note that if a union does not raise section 7106(b)(1) of the Statute, then we will not address whether the proposal concerns a (b)(1) matter.

5. See also, American Federation of State, County and Municipal Employees, Locals 2910 and 2477 and Library of Congress, 15 FLRA 717, 718 (1984) (proposal requiring the posting of a certain percentage of vacancies constituted a negotiable procedure; the Authority noted that the proposal "leav[es] to the Agency the determination of which and how many such vacancies will be filled with employees who work on a part-time basis in tours of duty set by the Agency[]"); American Federation of Government Employees, AFL-CIO, International Council of United States Marshals Service Locals and Department of Justice, United States Marshals Service, 2 FLRA 765, 766-67 (1980) (proposal requiring the agency to announce all vacancies for which bargaining unit employees are eligible to apply constitutes a negotiable procedure).

6. See also, National Union of Hospital and Health Care Employees, AFL-CIO, District 1199 and Veterans Administration, Medical Center, Dayton, Ohio, 28 FLRA 435, 482-83 (1987) (Sentences 2 and 3, Section 1, Proposal 12) (proposal requiring the agency to fill vacancies in an expeditious manner constitutes a negotiable procedure).

7. In contrast, in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA 460, 468 (1982) (Proposal V), the Authority found that a proposal constituted a section 7106(b)(2) procedure that required that when the agency seeks to fill a vacant position from a certificate of eligible candidates it will make a selection, if any, within two weeks or cancel the vacancy. In making that determination, the Authority noted that the proposal: (1) would not prevent the agency from considering or selecting an employee from any other appropriate source; (2) would not require the agency to select from a certificate within two weeks; and (3) would not prevent the agency from reestablishing the vacancy and obtaining additional certificates in the event that t